Photo: Contributed

While it’s one of my primary areas of practice, I try to stay away from writing about personal injury law topics. After all, there are already several other local lawyers who regularly write about car crash/ICBC claims.

But, earlier this week, I met with another lawyer and helped her out on one of her personal injury files. The advice that I provided was important and got me thinking, “Everyone should know this!”

So, this week, I am going to write about personal injury law and will provide you with TWO BIG TIPS that everybody (who is involved in a car crash) should know:

1. You need to aggressively pursue medical treatment; and
2. You need to preserve the evidence.

I’ll explain…

When you retain a lawyer to handle your car crash/ICBC claim, the lawyer will take care of most everything in the lawsuit. But, the lawyer can’t do everything for you…you must do two things yourself.

To begin, YOU need to AGGRESSIVELY PURSUE MEDICAL TREATMENT.

But, what does that mean? Well, it means that you must be proactive in ‘getting better’.

If you’re injured in a car crash, you need to go to your doctor and tell him/her that you’ve been injured. Then, if your doctor gives you advice, you MUST follow that advice (to the extent that it doesn’t hurt you, of course).

Then, after you follow that advice, you should go back to your doctor and provide him/her with an update and then follow any additional advice that he/she may give.

You must also follow the advice of your other medical practitioners, too. This is very, very important.

Here’s an example: Your family doctor, Dr. Smith, tells you that you need to see a chiropractor for injuries that you sustained after a recent car crash. You then attend a chiropractor, Dr. Jones, and the treatment is helping you. You continue to see Dr. Jones as often as he suggests. Maybe a few months later, you go back to Dr. Smith and provide an update on the progression of your injuries. In the update, Dr. Smith suggests massage therapy. You must then engage in massage therapy. And, you should not stop chiropractic care until clearing it with Dr. Jones.

Basically, you must do everything your medical practitioners tell you to do.

There are reasons for pursuing medical treatment like this…

First, you have a legal duty to ensure that your losses (i.e. your physical injuries) are as small as possible. In the legal world, this is called “mitigating your losses”. In a personal injury/car crash claim, this includes following ALL medical treatment.

The second (and more important) reason for ensuring that you follow (and follow up with) medical advice is because it will hopefully make you better, allowing your injuries to completely resolve!

Next, you need to PRESERVE THE EVIDENCE.

In a car crash claim, this may include taking photographs of the vehicles or taking photographs of your injuries. So, if you have cuts or bruises, you should take pictures of that.

But, most injuries in car crash claims are invisible – i.e. they are soft tissue injuries. So, how do you preserve or document those injuries? Well, you create a journal.

In that journal, you should record how your injuries have affected you (i.e. how you’re feeling every day or week). In your journal, you’ll want to write about whether or not you have difficulty sleeping, watching a movie, or wakeboarding. You’ll also want to describe what areas of your body are most affected when you perform these activities. It’s easy stuff, but it’s time consuming… and very, very important.

And why is it so important?

Well, consider this: do you remember what you had for dinner on April 3, 2013? Probably not, right? So, without recording in a journal, how would you remember your neck or back pain months ago? Answer: you wouldn’t.

But, why do you even need to accurately remember how your injuries have affected you?

Well, here’s the answer: if you’re injured in a car crash, you are entitled to money to compensate you for your losses. And, how much money you receive is proportionate to how much you’ve lost or, in other words, how much your injuries have negatively affected your life. So, if your life has been significantly affected, you are entitled to more money.

So, if you can’t completely recall how your injuries have affected your life (when asked years later by a judge or an ICBC lawyer), then you won’t receive all the money that you are entitled to. It’s that easy.

Now, having said all this, here is the most important piece of advice: be careful when driving…

No matter how much money you may get from a lawsuit, it will never compensate you for the loss of your health.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Whether or not you realize it, you regularly enter into contracts with other people or companies. In fact, you probably do it several times a day.

And, despite how often you do it, you need to be very careful about entering into contracts. I say that because…well...very few people are careful.

The purpose of this week’s column is to explain the basics (i.e. the nuts and bolts) of contract law.

Admittedly, it isn’t a sexy or exciting topic. But, it’s an important one and everyone should know this stuff.

Photo: Contributed

To start, contracts are formed and agreed to more often than you might know…

For instance, you enter into a contract when you agree to purchase a house, when you agree to sell your vehicle, and when you agree to take on a job or offer someone else a job. And, believe it or not, you enter into a contract when you buy milk at a supermarket or when you buy fuel at a gas station.

Believe it or not, there is a lot of (very intricate) law that surrounds these very routine events.

So, what is a contract? How is a contract actually formed? Well, it is impossible in this column to describe all the ‘ins and outs’ of contract law, but here are the basic components of a contract:

1. An offer: This refers to a person’s willingness to enter into contract (ex. to offer some goods or services).
2. Acceptance: This refers to a person accepting the offer described above (i.e. for some goods or services).
3. Consideration: This refers to the concept that the people involved in a contract must exchange something of value between each other. Here’s an example: if you sell a television to someone, the money that you receive is referred to as ‘consideration’. If there is no ‘consideration’, then there is no contract. For instance, let’s assume that you agree to gift/donate $5,000.00 to a local university (with nothing being given to you in exchange for that money). If you decide later to withhold that money, then the university would have a hard time suing you to get that money.
4. Intention to be bound: In order to form a contract, each person must actually intend to be bound by a contract. Sounds weird, right? But, as you can imagine, not every agreement that you make with someone will attract ‘legal consequences’. To illustrate, if two strangers agree to exchange services, then there is probably an ‘intention to be bound’ by a contract. But, if you tell your mother that you will give her $100.00 if she bakes you a cake, there was probably no intention to be bound (and your mother will have a hard time collecting that $100.00 from you in court).
5. Certainty of terms: The terms of the contract must be certain. In a lot of contracts, this requires certainty of the ‘3Ps’: parties, property, and price. To illustrate, if a real estate contract does not sufficiently describe the price of the property, then the contract might be not be enforceable. For example, if the real estate contract does not account for how or when the money will be paid, which can affect the interest calculation, then there might not be an enforceable contract.

Here’s my advice: next time you enter into a contract, make sure that you treat it seriously and confirm all the terms that are important to you.

So, when accepting a job, make sure that you ‘nail down’ the terms of the contract: What’s your pay rate? How much vacation time do you get? What sorts of benefits are included?

And, when selling your car, ensure that you ‘nail down’ what is included in the purchase price: Are you selling the winter tires? Are you throwing in full tank of gas? Are you selling the upgraded audio system in the car, too? Are you fixing the broken windshield?

Remember that when people don’t confirm important terms of a contract, they often end up in court. And, you don’t want to go to court, do you?

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

While working in a Vancouver courthouse, I watched a judge tell a self-represented person, who had been charged with drunk driving, to seriously consider hiring a lawyer. The judge said that, in many ways, an impaired driving charge is more complicated than a murder charge.

And, as odd as it may sound, the judge was absolutely correct.

Photo: Contributed

This week’s column will attempt to shed some light on the criminal offence of drunk driving, which, in Canada, is more commonly referred to as ‘impaired driving’.

To start, impaired driving laws have changed significantly in BC in the last few years.

In two previous columns, I have written about those changes: Drunk Driving Laws and Changes and Decriminalizing Drunk Driving.

The big change, in a nutshell, is that the BC Liberals created an administrative process that allows the police to bypass the criminal process. The administrative process is quicker and easier for police, but it has fewer safeguards to ensure the guilt (and the innocence) of those charged with impaired driving. I encourage you to read up on these changes.

Now, not surprisingly, criminal charges are less likely to occur in impaired driving cases (because police often elect to rely on the quicker and easier administrative process).

But, make no mistake: the criminal process remains and people can still be criminally charged with impaired driving. Criminal charges are more likely to occur if there are ‘aggravating factors’ present, which include the driver causing a car crash or the driver having a long and poor driving record.

Now, how does this criminal process actually get started? What are police actually looking for in an impaired driving investigation?

To explain these questions, here is an illustration:

Imagine that, after work, you have a few drinks at a pub and get into your car to drive home. While driving home, you drive into a ‘road-block’ and a police officer stops your vehicle. The officer will ask you if you have been drinking tonight and will closely observe your behaviour. Maybe your breath smells like alcohol? Maybe you slur your words? Maybe you have watery eyes? Maybe you are slow to get out your driver’s licence?

If your behaviour leads the officer to have a SUSPICION that there is alcohol in your body, then the officer can request that you blow into a roadside screening device, which renders a ‘pass’, ‘warn’, or ‘fail’ reading.

If you blow a ‘fail’, then you’ll be taken to the police station to be further submitted to a breathalyzer machine to (more accurately) measure your blood-alcohol level.

If, at the police station, your blood alcohol level is higher than ‘0.08’, then then the police officer will forward their notes and your breath results to Crown Prosecutors who will decide whether or not to proceed with criminal charges.

If criminal charges are laid, then you’ll likely have two separate charges against you: one charge for “impaired driving” and another charge for “driving over 0.08”.

Now, you may be thinking: “How does that happen?! Two criminal charges for one offence?” Well, yes, this happens. And here’s the law:

According to section 253(a) and (b) of the Criminal Code, it is a criminal offence to operate a motor vehicle:

a)  if you are impaired by a drug or alcohol; OR

b)  if you have consumed alcohol in such a quantity that the concentration in your blood exceeds eighty milligrams of alcohol in one hundred milliliters of blood (i.e. “driving over 0.08)”.

Now, it may sound strange, but Crown Prosecutors will typically lay charges under both section 253(a) AND (b).

For technical/legal reasons, you cannot be CONVICTED on both charges: so, even if you are guilty of both charges, only one of the charges will appear on your criminal record. But, when defending an impaired driving case, you or your defence lawyer MUST fight against BOTH charges.

Now, what does Crown have to prove in their case?

Well, for the impaired driving charge, the Crown Prosecutor needs to prove that your ability to drive was impaired. This is typically proven by calling the arresting police officer as a witness and having him/her describe your impaired-type behaviour, which can include your slurred speech, lack of balance, odour of alcohol on breath, and/or erratic driving.

For the “over 0.08” charge, the Crown will rely on your breath results taken from the breathalyzer machine.

For each offence, there are several rules that the police and the Crown MUST follow. If not, then Crown will lose its case.

For example, the police must inform an alleged impaired driver of their ‘right to counsel’ (i.e. their right to speak to a lawyer) when they are arrested. If the police don’t do this, then the breath results may not be allowed into evidence at trial (and the criminal charges may be ‘thrown out’).

I wish I could continue, but there is NO WAY that I can describe impaired driving law in one column. There are VOLUMES of material on this subject – it is very, very complicated.

But, with that said, there is ONE thing that is simple about impaired driving: don’t do it.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

This recent provincial election was…interesting. And, historical for a number of reasons: some good, some bad.

First, it’s great that Christy Clark is the first woman to lead a B.C. political party to victory. That is no small feat, considering she was once 20 points behind in the polls.

Next, it was good to see that the pollsters aren’t always right (even though, in this case, I was hoping they were).

The argument that polls should be treated with caution is even stronger when considering that, just over a year ago, the Alberta Progressive Conservatives unexpectedly defeated the Wildrose party for a majority government.

The election was also historical for another big, BIG reason: several people were either fired, humiliated, or both for comments that they had made in the media.

AND, with that, a dangerous precedent was set: if you make an online comment, that comment can haunt you, sometimes more than a decade later.

Let’s go through the list…

Dayleen Van Ryswyck: a local NDP candidate made some ‘less than politically-correct comments’ on Castanet’s forums about Aboriginals and French Canadians. These comments were made approximately 4 years ago. After the comments were made public, Ms. Van Ryswyck resigned as a candidate for the NDP.

Mischa Popoff, a well-known business person and a former Tory candidate was fired from the BC Conservatives when it was discovered that, in March 2012, he wrote inappropriate remarks about women and the Missing Women Inquiry in Kelowna newspapers.

Ian Toothill, a former Vancouver-False Creek Conservative candidate, was fired when it was discovered that he made tweeted some “odd” comments about the Nazis and also tweeted that “men love sluts”.

Rob Herbert, a former Conservative candidate, was fired when he called Premier Christy Clark a “bitch” in a tweet.

Dr. Jane Shin, the medical doctor and Burnaby-Lougheed NDP candidate, was publically ridiculed when it was discovered that, 11 years ago, she made a derogatory remark about Chinese-Canadians on a video-game website.

Yes, I think that these people made some bad choices. But, I’m not trying to further chastise them: that’s been done a lot already and that’s not the point of this column…

The point of this column is to argue that a dangerous precedent has been set…

In this new age, almost everyone has an ‘online profile’, whether it is on Facebook, Twitter, YouTube, or whatever. And, on those websites, almost everyone writes comments or posts photographs. And, I’d be willing to bet that almost EVERYBODY, both young and old, regrets posting or writing something online.

Ask yourself this:

• Have you ever taken an inappropriate photo of yourself and posted it online?
• Have you ever argued (online) about a controversial topic and then later changed your mind on that particular topic?
• Has someone ever taken a ‘less-than-professional’ photograph of you and posted it online?
• Have you ever said something (online) to someone or about someone that you later regret?

Photo: Contributed

If any of the above scenarios have occurred to you, then you’ve probably hoped that those ‘moments’ remain buried… But, as we’ve seen in the last election, they might not…

And, as we saw in the last election, anything you say online, even if it occurred many years earlier, is ‘fair game’.

So, what’s the downside of that? It may serve to keep ‘ill-suited’ candidates from political office, right?

Well, consider this: do you think respected business professionals or community-minded people will be MORE or LESS likely to enter politics, knowing that their previous online comments or photographs could return to HAUNT them?

Granted, not all great candidates will be ‘turned-away’ from politics because of this issue. But, if some otherwise great people are turned off by this, then who really loses? Obviously, it’s the public.

So, what’s the solution? Well, I don’t have one…

Granted, people should (absolutely) be very careful when posting online. But, who amongst us hasn’t said or done something that they regret?

I’m interested to see future elections, particularly how our lives are increasingly displayed on the Internet. It’ll be…interesting.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.