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Career Plans Derailed by Car Accident

People injured in car accidents often struggle to manage the demands of their job. If a person’s capacity to fully perform the requirements of their chosen career are projected to continue into the future, he or she is entitled to be compensated for that loss. But what about people who are not established in a career when they are injured? What about young people who are still in high-school or university? Are they entitled to be compensated for not being able to fully do a job they hadn’t yet obtained?

In these cases, ICBC often says they’re not.

As an example, in the case of Turner v. Dionne, 2017 BCSC 1905, the 19-year-old plaintiff was seriously injured in an accident. She sustained a traumatic brain injury, two fractured vertebrae and extensive soft-tissue injuries to the tissues around her spine. These injuries left her with debilitating and chronic back pain re psychological injuries that affected her ability to work.

The plaintiff had been in the middle of completing grade 12 when the accident happened. She had already obtained her first-aid certification and training to work as a firefighter, and had ambitions to pursue nursing after graduation. After the accident, she attempted to pursue her interest in the medical field first by engaging in a care aide program. Unfortunately, she was unable to complete the physically demanding practicum, which prevented her from completing her training. The plaintiff then made a second attempt to return to the medical field by enrolling in a nursing program. While she successfully completed her first year, she struggled extensively during her second. The program and practicum increased her pain and impaired her sleep so much so that she had to drop-out of the program. Being forced to give-up on her dreams of becoming a nurse was very emotionally difficult for her.

At the time of trial, the plaintiff was unemployed, but still held out hope that she could pursue additional schooling and achieve gainful employment in the future.

ICBC argued that the plaintiff’s difficulties completing her program were in no way related to her injuries and that she dropped-out of nursing, not because she couldn’t physically do the work, but because she wasn’t academically inclined.

The court disagreed with ICBC and found that there was good reason to believe that, absent the accident, the plaintiff would have successfully completed a college diploma program in a medically-related field and that, because of her injuries, she could no longer pursue such work. As a result, the court awarded her $950,000 for loss of future earning capacity.

What are Caps & Why are they Unfair?

As of April 1, 2019, all motor vehicle accidents that occur in BC will be subject to a new set of rules brought in by the provincial government last year. The most significant change is the imposition of a cap on damages for pain and suffering for those who suffer “minor injuries”.

Injury caps are detrimental to injured persons because they limit the amount of damages the person can claim from the person responsible for injuring them. That limit or cap is an arbitrary number that is not informed by the individual circumstances and experiences of the injured person.

While ICBC and the provincial government say that the cap will only apply to people who sustain “minor injuries”, the fact is that the majority of injuries sustained in motor vehicle accidents will be caught by the cap. This is because the BC government has made the definition of a “minor injury” exceedingly broad and the ability to escape it incredibly difficult.  Almost all physical and psychological injuries except for broken bones and complete muscle tears will be classified as minor. This can even include brain injuries and Post-Traumatic Stress Disorder. To escape the cap, a person must show that their injuries have caused a “serious impairment” to their schooling, personal life or work. What is still not clear is the level of disability a person must suffer for them to meet this threshold.

Many people have voiced concerns that, by focusing extensively on a person’s ability to work or go to school, the BC government is discriminating against people on a variety of bases. For example, despite suffering the exact same injuries, people who work in lighter or more sedentary jobs will likely be treated differently than people who work in more physically-demanding occupations. Similarly, women, who are more likely than men to be homemakers or stay-at-home parents, and seniors who are retired will likely be treated differently than men and those with jobs despite having the exact same type of injury.

Needing Family Support and Care after an MVA

If you are injured in an accident, managing seemingly easy household chores and basic aspects of personal care can become challenging so much so that you may need someone else’s help. This could range from help with cleaning your home to help with bathing yourself. It can be very difficult and feel invasive to have such aspects of personal care provided by a stranger. As a result, many people come to rely on their family and friends. However, whereas the cost of private care services would be compensable, ICBC often sees no value in those same services being provided by your loved ones. In ICBC’s mind, the efforts of those who care for you in assisting with your recovery are a gift. Since you did not actually pay them, they aren’t entitled to anything for their efforts.

Fortunately, our courts have held that such services can have a value worthy of financial recognition.

In the recent case of James v. James, 2018 BCSC 907, a 71 year old female was injured in an accident when the driver of the vehicle she was a passenger in lost control and crashed. She suffered fractures to her neck and lower back, fractured ribs and a severe traumatic brain injury with intracranial bleeding. Sadly, her injuries rendered her an incomplete quadriplegic She was hospitalized for 6 weeks before being transferred to a rehabilitation centre where she spent the next 3 months. She subsequently required significant assistance with her daily living. She was not able to grocery shop, prepare meals, bathe herself or perform numerous other aspects of personal care. In an attempt to preserve her dignity and maintain her privacy and as much normalcy in her life as possible, she chose to rely more upon her husband and step-daughter than private caregivers.

At trial, the plaintiff claimed an in-trust award to recognize the much-needed services provided by her family members. Despite the serious nature of the plaintiff’s injuries and her obvious need for assistance, ICBC disagreed with the scope and value of the services claimed by the plaintiff.

In accepting the plaintiff’s claim, the court determined that personal caregiver support was required by the plaintiff as a direct result of the injuries she suffered in the accident and that the level of support she received was far above what would be normally expected of family. In determining what an appropriate award would be, the court considered the cost of having those same services provided by a professional care provider. In this case, the care required by the plaintiff amounted to $300 per day. Extrapolated from the date of the accident to the date of the trial, the court awarded the plaintiff $345,000 for the care services provided by her family members.

Understanding Non-Financial Charges on Title to Property

The “investigation” period is one of the most important stages in purchasing property. This is the time between your offer being accepted and removal of the conditions you included in your offer. Common conditions include approval for financing and insurance, and an inspection of the property. These conditions are often referred to as “subjects” as your offer is subject to those conditions being satisfied.

Another important condition involves review and approval of a current title search for the property and copies of the non-financial charges that will remain on title after completion of the purchase.

A title search discloses the name of the registered owner of the property, the legal description or the property, legal notations, and charges that are registered against the title to the property. The charges will include any financial charges, such as mortgages, liens, judgments, and certificates of pending litigation, which will be removed when the property is transferred.

The title search will also disclose the non-financial charges that will remain on title after the property is transferred. Non-financial charges can include covenants, easements, statutory buildings schemes, undersurface rights, and exceptions and reservations.

It is important that potential buyers understand which of these non-financial charges will remain on title, and how these charges may impact their ability to use the land. This can be particularly important when you are purchasing a lot with the intention of building a new home, as the charges may impose restrictions on what and where on the property you can build.

Common non-financial charges include:

Covenant

A Covenant may restrict your use of the property. A Restrictive Covenant will be tied to another parcel of property, which receives the benefit of the charge. As an example, a Restrictive Covenant could restrict the height of buildings and trees on your property, or the use of your property.

A Section 219 Covenant is registered in favor of the provincial or local government, and is not tied to another piece of property. These covenants are common in new real estate developments, and can be used to protect sensitive areas, such as those prone to flooding or on hillsides, by restricting where and how owners can build. Section 219 Covenants are often used to impose boundaries relating to water, setting out the required distance between any buildings and water located on the property.

Easement

An Easement will likely impose limitations or restrictions on what you can do with the area of your property that the Easement covers. It will be tied to another parcel of property, which will receive the benefit of the Easement.

Easements are commonly used to provide access to from a parcel that is not adjacent to a roadway. The Easement area will be defined in the charge, which will grant the neighbouring property the right to cross over the Easement area to access their property. If you own the property over which the Easement is registered, you may be restricted from using or altering the Easement Area in any way that would interfere with the ability of the other owner to use the Easement to access their property.

If the Easement is registered over your property, it will appear on title and will be granting a benefit to another property owner. If your property is receiving the benefit of an Easement, it will appear as a legal notations.

Statutory Right of Way

A Statutory Right of Way can allows the provincial or local government, or utility providers access to your property to construct or provide for transmission of utilities, maintenance of sidewalks, and other such services. Unlike an easement, a Statutory Right of Way is not tied to another lot.

Statutory Buildings Schemes

Statutory Building Schemes are registered by developers for the purpose of maintaining the general design or layout of a development. They can restrict the height and size of buildings, building materials, landscaping, the parking of recreational vehicles, fence heights, and positioning of clotheslines.

Land Use Contracts

Land Use Contracts were contracts between an original developer and local government, governing the development and subsequent use of land. While they can no longer be registered against title, existing Land Use Contracts that remain on titles can still impact the use of that parcel of land.

Exceptions and Reservations and Undersurface Rights

Exceptions and Reservations and Undersurface Rights are used to preserve the right to minerals or timber when property is transferred. Ownership of the land transfers, but the right to minerals, or other elements as set out in the charge, remain with the party that holds the charge.

Reviewing the Title and Charges

You should review a current title search and copies of all non-financial charges prior to removing this condition from your offer. Upon removing this condition, you are agreeing to receive title with all of the non-financial charges, and are accepting any restrictions that may be imposed by the charges.

Making an Offer to Purchase Real Estate

When you have chosen the home you want to buy, you make an offer to the seller. The offer is usually made in a standard written contract of purchase and sale. The offer includes:

  • The property, the parties (i.e. the buyer and seller) and the price. These are the basic terms of any sale contract.

  • The chattels which are included with the property. The most common chattels sold with a house are fridges, stoves, washers and dryers. If there is something you want to stay in the house, you should list it as included in the contract.

  • The amount of deposit.

  • The completion (date you pay the seller), adjustment (the date you start paying for property taxes and utilities) and possession (date you move in) dates. The possession and adjustment date should be the same. The completion date is usually either the same as the possession date or the day before.

  • Request for a current land survey of the property.

  • When you offer expires.

The owner of the house has the option to reject or accept your offer. If they reject the offer, you have the option to make a counter offer or you can walk away and keep searching.

If the owner accepts and sign the offer, then you have a deal! An offer to buy is generally accompanied by a deposit which is usually five per cent of the purchase price.

It is common to make a conditional offer meaning that the contract is not binding on the parties until those conditions are satisfied and removed. Buyers should always consider inserting the following subject conditions, which must be removed before the contract is binding:

  • Subject to you obtaining a mortgage (i.e. financing).

  • Subject to you selling your current home.

  • Subject to the seller providing you a current survey which shows the location of the house on the property.

  • Subject to a home inspection (or septic tank or well inspections).

  • Subject to reviewing the strata council records and bylaws.

  • Subject to confirming any intended use of the property is acceptable with the local municipality or regional district (e.g if you plan to operate a business or put in a suite).

Once an offer has been accepted and any  conditions have been removed, the contract is binding and the buyer may be sued if he or she does not complete.

When ICBC’s Doctor Says You’re Not Suffering from PTSD

Car accidents don’t only cause physical injuries. People can suffer very real and debilitating psychological conditions as a result of being involved in an accident. These can include anxiety, depression and Post-traumatic stress disorder (PTSD). Unfortunately, because such injuries can’t be seen by the naked eye, ICBC will often say that those injuries don’t exist.

That’s exactly what happened in the recent case of Godbout v. Notter, 2018 BCSC 1043. In that case, the plaintiff, a 53 year old truck driver, suffered extensive physical injuries as a result of a car accident. These included injuries to his neck and shoulder, chronic headaches and various concussion-related symptoms. In addition to those, his doctors, which included a clinical professor psychiatry at the University of British Columbia, all diagnosed him as suffering from PTSD since and because of the accident, and recommended that he receive further therapy to help him cope with its effects. This diagnosis conformed with profound changes in his personality and behaviour observed by his family members and friends who testified at trial.

To refute these claims, ICBC hired a psychiatrist named Dr. Miller who, not surprisingly, concluded that the plaintiff’s current symptoms did not meet the threshold for a diagnosis of PTSD. Unfortunately for ICBC and Dr. Miller, it was revealed at trial that Dr. Miller failed to ask many important questions about the plaintiff’s symptoms. Instead of looking at the plaintiff’s symptoms in the 3 years that had passed since the accident, he only focused his questions the one month before the assessment. In addition, Dr. Miller made numerous contradictory statements about the plaintiff’s medical history and health and in his report.

The court was not taken in by the gross deficiencies in Dr. Miller’s approach and report, and determined that “the opinions of Dr. Miller are not reliable as his conclusions seem to contradict his findings and the reporting to him by Mr. Godbout.”

In every case the testing administered by hired doctors, the questions they ask and the assumptions on which they base their opinions need to be scrutinized in order to determine if those opinions are valid.

Small Claims Default Judgement

The first step in any BC Provincial Court case, often referred to as Small Claims, is for the defendant(s) to be served with a Notice of Claim. It is a requirement that if served within BC a Defendant must file a Reply within 14 days. If served outside BC the time period is 30 days. If a defendant fails to file a Reply within the required time frame the Claimant can apply for default judgement against them. If a Reply is filed and the court proceedings continue a party can still acquire default for failure of the opposing party to attend the settlement conference, trial conference or trial. The court may grant default judgement with or without a hearing depending on the damages claimed. If a hearing is required the Claimant is not required to notify the Defendant. A default judgement has the same force and effect as a judgement after a trail and a party can rely upon it immediately to enforce payment.

If a default judgement is taken out against a party then can apply to have the judgement set aside. If successful the matter would proceed forward as if default had never been attained. Often the party who default was granted against will have to pay the expenses the other party incurred to attain default. A party applying to set aside default must inform the court the reason they failed to file or attend, any reason for a delay in applying to set aside the default and the facts that support their claim or defence. When deciding whether or not to set aside a default judgement the court considers the principals as set out in Miracle Feeds v. D. & H. Enteprises Ltd., (1979), 10 B.C.L.R that the party who defaults is against:

1) Did not wilfully or deliberately fail to enter an appearance or file a defence to the claims;

2) Made the application to set aside the default judgement as soon as reasonably possible after obtaining knowledge of the defaults judgements, or can provide an explanation for any delay in the application being brought; and

3) Has a meritorious defence, or at least a defence worth of investigation.

As the delay in bringing the application is a consideration it is important to ensure that immediately upon becoming aware of a default judgement that you take steps to have it set aside.

It is essential that if you are named as a defendant in a Small Claims action that you file a Reply within the prescribed time frame and attended all court hearings including the settlement conference. Even if you are successful in having a default order overturned you will likely have to pay the expenses relating to the default order and if you are unsuccessful the other party will have a judgement then can enforce against without you being able to present your defence to the claim.

Court Costs

By Stuart Cappus

Court costs, known more simply as “costs”, are an amount of money meant to compensate a party for the time and expense of having to participate in a Supreme Court case. When a party has a lawyer, costs help offset the party’s legal fees. Generally, only the party who is successful is entitled to costs, which are payable by the unsuccessful party. A party does not have to win at trial to be successful. If a case settles before trial and involves the payment of money from the defendant to the plaintiff, the plaintiff is still entitled to costs. Conversely, if a plaintiff discontinues a lawsuit against a defendant, the defendant would be entitled to costs.

The amount a successful party will receive for costs depends on the stage of the litigation at which the case resolves and the difficulty of the case. For each step in the litigation, the Supreme Court Civil Rules provides a range of units that the successful party can claim. The more time spent or work done on a particular step, the more units the party can rightfully claim. Those units are then multiplied by one of three set dollar amounts. The more difficult the case, the higher dollar amount the party can attempt to claim. The product of this equation is the amount of money the party will receive as costs for that particular step. For example, if a party claims 5 units for exchanging documents at a rate of $110 per unit, the party could be entitled to $550 + tax for the time and expense of having to exchange documents.

If the parties cannot agree to the amount of costs payable, they can apply to a Registrar of the Court to assess the amount of costs the successful party should receive.

It should be noted that there are a number of rules relating to a party’s entitlement to costs, the amount and when they are to be paid. If you have questions about costs in a Supreme Court civil case, contact one of our civil litigators for a consultation.

Guaranteeing/Co-Signing Loans

It is important when signing as either a co-signer or guarantee that you review both the loan agreement and the borrower’s ability to repay the loan. It is vital that you discuss with the borrower there ability to make the loan payments and request documentation to show their financial position. It may feel awkward to discuss this with family and friends but it is important to take these additional steps if you are placing yourself at financial risk by co-signing their loan. You should always consider why the borrower needs a co-signor/guarantor.

You should also review your own financial situation to determine if you could make the loan payments yourself if the borrower is unable. Having to pay an additional loan, even for a short period, could place you in financial difficulties yourself. Often co-signers/guarantors assume that if they do have to incur any costs that the borrower will reimburse them for these expenses. It is important to remember however if the borrower has been unable to meet their financial obligations under the loan agreement they may not be able to pay any costs and expenses you incur.

It is important when reviewing the loan agreement to look at the size of the deposit being paid and the total amount of the loan as compared to the property value. Different forms of property depreciate at different rates and this should be considered when entering into any loan agreement. The loan agreement should be reviewed for penalty and acceleration clauses in order to determine what amounts may potentially be owing upon default. All co-signors and guarantors should understand that the lender can potentially come after them for any short-fall in the loan and the costs incurred by the lender in collecting against the property.

A potential co-signor/guarantor should be mindful of the fact that co-signing or guaranteeing a loan can also affect their own credit score and restrict their ability to access financing in the future regardless of if the borrower defaults or not. It is important to ensure if you do decide to co-sign/guarantee a loan that you are kept aware of the loan amount and terms. Request that the lender provide you directly with monthly statements in order to known in advance of any potential issues. Often people think that they will only have to co-sign/guarantee the loan for a short time once the borrower increases their credit score. It is important to remember that unless the loan is paid off or refinanced it is at the discretion of the lender to remove a co-signor/guarantor from a loan. If signing as a co-signor/guarantor it is important to receive legal advice regarding the loan agreement as each agreement can have unique terms that may affect your decision to co-sign.

Small Claims Jurisdiction

It is important before commencing any legal action in the Provincial Court of British Columbia often referred to as the Small Claims court that the action is within the jurisdiction of the court. If you file in the wrong court it can have significant repercussions such as your case being dismissed and being unable to file in another court or jurisdiction due to the limitation period passing.

The first a most well-known jurisdictional issues with the Small Claims court is with regards to the monetary limit. The Court is unable to hear matters in which the amount claimed is in excess of $35,000 unless the claimant waives their right to any award over that amount. Furthermore, if the amount claimed is less than $5,000 then it should likely proceed in the new Civil Resolution Tribunal unless a specific exemption exists to refer it back to Small Claims.

The authority of the Provincial Court to hear a claim comes from section 3 of the Small Claims Act, RSBC 1996 C430 which allows the court to hear claims for debt, damages, recovery of personal property and specific performance of an agreement relating to personal property or services.

The Provincial Court does not have jurisdiction to hear claims relating to libel and/or slander, malicious prosecution, title to land, enforcement of foreign judgments, recovery of property under the Personal Property Security Act, bankruptcy, trade mark and any matter in which the jurisdiction has been granted to another court or body by a statute.

The Provincial Court does have jurisdiction to hear matters as they relate to enforcing or interpreting a will or assisting with probate as these matters have been directly granted to the Supreme Court of British Columbia by enabling statute. Similarly human right complaints, work safe complaints and tenancy matters are within the jurisdiction of their tribunals and agencies.

Similarly some employment disputes are only within the jurisdiction of Employment Standards such as request for parole documentation and work conditions/policies. Unpaid wages are however within the jurisdiction of the Provincial Court unless the employee has already received a determination from the employment standards branch relating to the unpaid wages or the matter has proceeded before the Employment Standards Tirbunal.

It is important to ensure before commencing any legal action that the court or tribunal in which you are acting has jurisdiction to hear your claim.