The deduction reduction

My last article, Great Conflict Conundrum, discussed the legally authorized conflict of interest BC drivers are subjected to if they are injured and found not at fault in a motor vehicle accident.

To briefly summarize, if someone is injured in a motor vehicle accident and found to be not at fault for that accident, s/he has two claims under the contract of insurance with ICBC: the Part 7 claim, and the Tort claim.

The conflict of interest arises because of ICBC’s dual roles under the Part 7 and Tort claims. Under the Part 7 claim, your friendly ICBC adjuster is supposed to have your best interests at heart. Under the Tort claim however, your best interests are now solely your problem, and that same friendly adjuster is, well, not so friendly. Something the adjuster doesn’t tell you is that s/he can use the information you provided under your Part 7 claim in good faith to pay you as little as possible for your Tort claim.

You may be wondering what else does ICBC doesn’t tell you if you’re injured in an accident.

Keep reading.

If you have received or are entitled to receive Part 7 benefits, section 83 of the Insurance (Vehicle) Act deems you to have released the Tort claim to the extent of those benefits. In other words, your Part 7 benefits will be deducted from your Tort claim. The deduction is not discretionary; it is mandatory, and can include future benefits as well.

Section 83 allows ICBC to argue that it should not have to pay any money covering benefits you could have received from ICBC (Part 7 benefits) as your own insurer. And—this is where it gets interesting—whether you received the benefits or not is an entirely irrelevant consideration; that is, the deduction can be made even if you applied for these benefits and ICBC refused to pay, or you are in breach of your insurance and therefore not entitled to any benefits.

Sound complicated? It can be. This is just one more reason why you should always seek the advice of a personal injury lawyer when dealing with ICBC. Most lawyers offer free initial consultations so you have nothing to lose by doing so.

If you are advancing a Tort claim with ICBC, you would be well-served to apply and follow up for all of the Part 7 benefits to which you may be entitled.

Failing to do so could put you in the unfortunate position of having your claim reduced for benefits you never received, all thanks to The Deduction Reduction.

This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.

Great conflict conundrum

Drivers in British Columbia are well-aware of the fact they live in a province where ICBC holds a monopoly over automotive insurance. What may not be so apparent however, is what that can mean in a motor vehicle injury claim.

If someone is injured in a motor vehicle accident and found to be not at fault for that accident, s/he has two claims under the contract of insurance with ICBC:

1.  The “Part 7”, or “No- fault” Benefits claim; payable no matter whose fault the accident was, and intended to cover or contribute to medical expenses, rehabilitation costs, wage loss, and loss of homemaking ability.

2.  The Tort Claim; intended as compensation for pain, injury, suffering, and loss of enjoyment of life.

 

“Great” you may say. “The accident wasn’t my fault. ICBC is my insurance company, and it will look out for me, right”?

Don’t be so sure.

Because of its monopoly, ICBC has dual roles under the Part 7 and Tort claims and operates under a legally authorized conflict of interest.

In the Part 7 claim, you are seeking payment under your insurance policy and the ICBC adjuster has the job of facilitating treatment and covering your applicable expenses, costs, and losses.

In the Tort Claim however, you are seeking damages under the at-fault driver’s insurance policy. In this claim, ICBC no longer represents you, and must defend the at-fault driver.

The once friendly and sympathetic adjuster who helped you under your Part 7 claim now has the job of ensuring that ICBC pays you as little as possible. S/he is now working against you, and will use anything you have told ICBC to minimize payment for your injuries.

No matter what you think (or have been told) what your case is worth, before settling your Tort Claim directly with ICBC, consider this:

1.  Your ICBC adjuster works for ICBC—not for you. Despite the fact ICBC is your insurer, the adjuster’s job is to minimize payouts to you.

2.  ICBC’s adjusters and managers have received bonuses for keeping claim payouts below certain thresholds.

3.  It is to ICBC’s advantage to get you to settle as quickly as possible. Claim values typically grow when injuries do not resolve quickly.

4.  Your adjuster has no obligation to advise you of your legal rights in your Tort Claim against the at-fault motorist.

5.  If your symptoms persist, only a qualified lawyer will be able to adequately deal with complexities such as medical and vocational experts, loss of income, loss of future earning potential, and cost of future care.

6.  You wouldn’t buy anything without some information about its market value (house, car, stereo etc.). Why would you accept the value of your claim from someone whose job is to settle for the lowest possible amount?

 

Under ICBC’s system, having an adjuster purport to look after your interests is like putting the fox in charge of the hen house. A conflict of interest—authorized by law or not—is still a conflict of interest.

If you are injured in an accident and decide to deal with ICBC yourself, keep in mind that when it comes time to settle your Tort Claim, your friendly adjuster just may have other interests in mind than your own—something that shouldn’t take you by surprise now that you are aware of the Great Conflict Conundrum…

This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.

The immaculate electorate

Liberal Party of Canada leader Justin Trudeau recently made a platform speech outlining his 32-point democratic reform plan. If headlines are any indication, the point that most impressed itself upon the media and political pundits alike is the intention to get rid of the “first-past-the-post” electoral system.

What exactly is first-past-the-post and why would someone want to get rid of it you ask? In answering those questions, it is helpful to briefly review three alternate electoral systems commonly in use today. Please note that this is a general, and by no means comprehensive, review.

 

Alternative or Ranked Choice Vote

In this system the voter ranks the candidates in order of preference, putting a “1” by their first choice, a “2” by their second choice, and so on. Candidates are elected if they gain an absolute majority (more than 50% of the votes). If this does not happen, the candidate with the least first preference votes is eliminated and his/her votes are redistributed according to the next preference on the ballot. This continues until one candidate has half the votes.

Proponents argue this system is more democratic as it ensures candidates have the support of the majority of their constituents and allows voters to vote for their first choice without fear their vote will not count.

Opponents argue this system is undemocratic because it can result in the election of a candidate who was not the first choice of the majority of voters.

It is interesting to note both Stephen Harper and Justin Trudeau were elected as leader of their parties using this system.

 

Second Ballot Majority or Runoff Voting

In this system a candidate is elected by obtaining an absolute majority. If there is no absolute majority, a second round of voting is held. The candidate with the majority of votes in the second round is elected.

Proponents argue this system gives voters the greatest choice, allowing them to vote for their preferred candidate a second time, or even change their mind, in the second round.

Opponents argue this system favours large parties, and the second round is not only costly, but can foster political instability between the two rounds.

 

Proportional Representation

With large ridings in which multiple candidates compete for a number of seats, this system reflects an electorate’s votes proportionally; that is, if a party garners say, 25% of the popular vote, it gets 25% of the seats in that riding.

Proponents argue this system is the most democratic and fair because every vote counts and has equal weight, resulting in markedly higher voter turnout and citizen participation.

Opponents argue this system produces a fragmented multi-party parliament leading to political gridlock and instability.

 

With the foregoing in mind, we now return to the questions of what exactly is first-past-the-post and why would someone want to get rid of it.

Unlike the previous electoral systems, in the first-past-the-post or “winner-takes-all” system, a candidate is elected by obtaining a plurality of the popular vote. This means that a candidate is elected simply by obtaining one more vote than any other candidate.

Proponents argue this system is simple to understand, cost-efficient, and fosters a single party government resulting in political stability.

Opponents argue this system is undemocratic for a number of reasons, including the following:

Because an elected candidate need only have a plurality of the vote, the majority of voters may have actually voted against him/her. An example of this involves “vote splitting” where the majority of the popular vote is split between, say the Liberal and the NDP parties, allowing the Conservative party to win with a plurality that is significantly less than 50% of the vote. This creates apathy towards the system, as voters perceive their vote does not count and is a waste of not only their vote, but their time.

With small ridings electing one candidate per riding, this system encourages “gerrymandering”, in which political boundaries are strategically redrawn to concentrate support and ensure a specific candidate is elected.

This system fosters “tactical voting” in which voters, perceiving their first choice vote will not count, vote against the candidate they most dislike rather than the candidate they prefer.

You can see there are valid reasons why someone would want to get rid of first-past-the-post. Any opinion on that debate is well beyond the scope of this article; however, there is a larger point to be made.

Winston Churchill once stated “democracy is the worst form of government, except for all those other forms that have been tried from time to time”. For democracy to work properly however, the people must accept their responsibility to actively engage in the political process. As Robert H. Jackson correctly declared, “it is the function of the citizen to keep the Government from falling into error”.

Whatever the outcome of the 2015 federal election, I hope that Justin Trudeau’s platform will foster a much-needed dialogue that forces us as Canadians to examine and reassess our democratic values and political ideals, as well as our relationship to both.

And—dare to dream—this new-found political awareness will not only lead to the reformation of our sociopolitical system, but also ensure that it never again regresses to its current sorry state.

This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.

Justice and the jury

A civil trial is generally heard by a judge alone. Nevertheless, in most types of actions, a party has the right to trial by judge and jury and may call for a jury trial by serving a jury notice.

By statute, there are actions that may not be tried by a jury. In BC, jury trials are prohibited in actions against the Crown and in family law proceedings. Personal injury trials however, can be heard by jury.

Having recently finished a two-week personal injury jury trial, I have had ample opportunity to reflect upon justice and its relationship to our court system. While the jury in our case returned a verdict in our favour, it is my opinion that justice is not necessarily served by having a personal injury case heard by jury.

In a jury trial, the judge and jury work together. The jury judges the evidence and the facts arising from the evidence, and the judge clarifies the law. The ultimate decision of the court is in the jury’s hands, and poses no real problems except on one significant point: non-pecuniary damages.

Non-pecuniary damages are a monetary award to compensate the plaintiff for pain, injury, suffering, and loss of enjoyment of life. The award is called “non-pecuniary” because it cannot be compared to a dollar amount as is the case, for example, in a claim for past loss of income.

The Supreme Court of Canada implemented a judicial “cap” of $100,000 on non-pecuniary damages in 1978 through a series of cases known as “the trilogy”. This amount can only be adjusted for inflation and today is approximately $350,000. This maximum cap amount is only awarded for truly catastrophic injuries.

In a judge alone trial, the plaintiff and defendant’s lawyers provide the judge with examples of trial judgments indicating a range or amount of non-pecuniary damages they believe is appropriate to compensate the plaintiff. The judge then determines the amount based upon which case s/he finds most closely reflects the case at trial.

In a jury trial however, the law does not permit the judge or either lawyer to provide the jury with examples of trial judgments, or even mention awards in other cases. The jury must effectively decide what the appropriate non-pecuniary damages will be in a vacuum. In our recent case, the jury actually requested direction from the court on the basis it was unfair not to be given the guidance provided in a judge alone trial. The law however, is clear.

The reasoning appears to be that the jury voices its view to the court, giving it the opportunity to reflect the view of the community and ensure confidence in the justice system and the Rule of Law. That may be a fine sentiment in theory, but in practice, it does not appear to be so.

If the jury awards a non-pecuniary verdict over the cap (too much according to the trilogy), it would appear that the community is telling the court the cap is set too low. However, should that happen, what inevitably follows is the trial judge or the Court of Appeal reducing that verdict, effectively ignoring the view of the community.

As one example, in Lee v. Dawson, 2003 BCSC 1012, the jury awarded the plaintiff $2 million in non-pecuniary damages. The trial judge replaced this verdict with the cap adjusted for inflation at the time, which was roughly $294,000. The BC Court of Appeal dismissed the appeal, and the Supreme Court of Canada refused to hear the appeal, providing no reasons for doing so. Whatever the view of the community then, it appears the Court has no appetite to revisit the cap on non-pecuniary damages.

Regardless, without even taking into account the inadequate selection process or the additional time and costs required for a jury trial, is justice served with non-pecuniary verdicts based upon guesswork which may or may not adequately compensate a victim, and then potentially require the additional costs of appealing the verdict?

Can the court reconcile giving a jury no direction on non-pecuniary damages, telling the jury it is the sole judge of the facts and its view of the evidence must prevail, and then substituting a different verdict? How is that fair to the jury or to the plaintiff?

In a personal injury trial, are “justice” and “the jury” mutually exclusive terms?

What do you think?

This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.