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Achieving-Justice

Beg to go back to work

A personal injury claim can feel like a minefield of uncertainty. A bunch of that has to do with taking time off work. I am going to clear away the cobwebs with my best legal advice about that issue.

Some of what I write might sound like medical advice. If my suggestions seem to conflict with the advice of your medical team,  I recommend that you discuss any perceived conflicts with those folks to see if they can be resolved.

If not, of course follow their advice which is specific to your medical condition, not my generic suggestions.

And my advice might or might not be widely shared among lawyers. Again, I recommend that any perceived conflicts be discussed, but, of course, follow the legal advice of your trusted legal adviser which is specific to your case.

You’re injured in a collision. No broken bones, but you feel like hell. Getting out of bed the next morning is difficult. Heading in to work feels like an impossibility.

You get in to see a doctor as soon as you can and ask for a note to be away from work.

If they feel it is medically appropriate, your doctor will take you off work. And on your request, they will extend the time if the doctor continues to feel it is medically appropriate.

ICBC and other disability insurance providers will push to have you back to work as soon as possible. They care about cutting off disability benefits, not about you.

Graduated return to work programs are proposed, at as fast a pace as possible. It might feel way too soon. What if you agree to try, and it turns out to be impossible to maintain?

And you continue to experience pain. Won’t returning to work give the false impression that you’ve fully recovered?

Consider what your co-workers will think while you are away from work?  Particularly if they buy even a sliver of ICBC’s propaganda about insurance fraud. Unless you are in the hospital, I suspect that they are feeling a little jealous, that you are taking a bit of an “ICBC Holiday."

And the longer you are away, those feelings grow. 

If they see you out in the community, or you pop in to work for this or that, you will appear perfectly fine. Those feelings grow even more.

My advice: Instead of asking your doctor to take you off work, beg your doctor’s permission to try to continue working, asking for medication to help deal with your muscle spasms and pain.

Ensure your doctor is fully informed about your symptoms and the nature of your work. It might be necessary to be away from work to avoid causing more harm. Or to allow for healing.

If your doctor says you must not return to your job for a period of time, ask the doctor to be very clear about the level of activity restriction that’s necessary.

And beg for permission to ask your employer for a modified work arrangement, at reduced hours if necessary.

However stringent your medically mandated activity restrictions, beg your employer to come up with a modified arrangement to accommodate them. Heck, even if it’s showing up for an hour or two a day to support those picking up the pieces of your absence.

Your employer doesn’t want to pay you for under-productive time? 

Offer to do it for free.

But what if your attempt fails?  You try, but just cannot make it? Get back in to see your doctor, report on the attempt, and get updated medical advice.

In a nutshell, my advice is to struggle to maintain your employment as fully as possible except to the extent that doing so might cause further harm or impede your recovery.

But why?  Why bust your behind to help the disability insurance company?  You have disability insurance benefits for a reason.

A doctor’s note does not prove an employment disability. The most effective way to identify, and prove, your injury related limitations is to push up against them.

Supervisors and co-workers can be the very best witnesses in a personal injury case. Never, ever “put on a show,” but if you are truly struggling to do your job, your struggles will be noticed.

And you will avoid the cynical “ICBC Holiday” perception.

Only one person benefits from income loss. And it’s not you. Lose $1,000 of income and the very best you can do is recover reimbursement of loss.

If you have to hire a lawyer to achieve justice, you will lose a chunk of that loss to legal fees.

The law requires you to take reasonable steps to keep your losses to a minimum. If you take the proactive steps I’m suggesting, you will avoid some snide insurance company representative ever being able to suggest that you didn’t do enough.

And you know what? 

I am willing to bet that medical specialists would say that it’s good medical advice to keep as physically functional and fully participating in your regular life and activities as reasonably possible.



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Keep your brain on the road

We continually ignore the road safety “elephant in the room,” even when it is so clearly the cause of the most horrific crashes.

Crown counsel is seeking a 10-year prison sentence for Jaskirat Singh Sindu, the semi truck driver who caused the Humboldt Broncos bus crash.

His lawyer said that he “...beats himself up everyday questioning how he didn’t see the signs and come to a stop.”

He didn’t see the “Stop Sign Ahead” sign at approximately 301 metres from the intersection, nor the oversized stop sign itself, topped with a red, flashing light.

There were violations galore in his log books and he was inexperienced, but nothing to suggest that incomplete log books or inexperience had anything to do with this crash.

He just didn’t see the signs.

Just seven months earlier, a sentencing decision was released in the case of another horrific semi-truck crash where the driver “didn’t see the signs:" R. v. Lavoie, 2017 SKQB 265.

Normand Lavoie was not inexperienced. He had obtained his Class 1 licence approximately six years before he crashed full speed into the back of a stopped car in a construction zone, killing the three teenage occupants and causing life altering injuries to a flag person.

He didn’t see the several signs, at 100-metre intervals, warning of the construction zone that had started 1.6 kilometres before the crash scene.

And he didn’t see that traffic had come to a complete stop.

Mr. Lavoie was quoted as saying:

“With it being Saskatchewan, it’s flat and kind of just go into auto pilot,” and “You’re just kind of in la-la land, basically – I’m there behind the wheel, but I’m not.”

The court noted that “Normand is extremely remorseful for the catastrophic situation he has caused as a result of his unexplained inattentiveness.”

Neither of these drivers were under the influence of alcohol nor engaging in a dangerous driving activity. Neither made the conscious choice to do anything wrong.

What caused these drivers, who were looking out of their windshields and holding onto their steering wheels, to somehow not see that which was plainly there to be seen?

It seems preposterous, doesn’t it?  Makes you angry?

What if I told you that fully 50 per cent of my personal injury practice has to do with similarly preposterous “blindness?” 

Traffic is at a complete stop. Moments pass. An offending driver crashes into the back of a stopped vehicle.

These are not following-too-close scenarios. And except in very rare circumstances, there is no evidence that the offending drivers were under the influence of alcohol nor engaging in a dangerous driving activity.

The phenomenon has been scientifically studied in the context of cellphone use behind the wheel. They call it “Inattention Blindness.” To learn about this concept, please read this paper: Understanding the Distracted Brain

Quoting from the paper:

“Distracted drivers experience inattention blindness. They are looking out the windshield, but do not process everything in the roadway environment necessary to effectively monitor their surroundings, seek and identify potential hazards, and to respond to unexpected situations.” 

And yes, preposterous as it might seem:

“They miss visual cues critical to safety and navigation. They tend to miss exits, go through red lights and stop signs, and miss important navigational signage.” 

How many of us have missed a turn or a road sign simply because we were:

  • daydreaming
  • thinking about the office
  • thinking about what we were going to do when we got home?

And those missed turns and road signs were obviously just the tip of the iceberg of other roadway information that we failed to process. We have been lucky not to have killed someone!

I used to have “close calls” from time to time, just like everyone else. You know, those moments when the hair at the back of your neck bristles with the realization of how close you came to causing a crash?

I’ve learned that the only way to avoid those close calls is to pay direct, constant attention to the road ahead. 

Ridiculously common sense? Perhaps, but it doesn’t come naturally.

It is more natural for our minds to wander. The act of driving is just so incredibly easy. It takes such a small portion of our active consciousness to keep a vehicle between the lines.

So, of course, our minds go to other things.

That’s the road safety “elephant in the room.”

It’s what happened to Mr. Sidhu and Mr. Lavoie. And it causes the majority of crashes on the road today.

Come up with a way to keep our minds focused on the task at hand and most of the carnage would stop.

What about an eye movement monitor that would chirp if it detects a day dreamy, uninterrupted gaze?  Perhaps a device requiring a reset by the driver periodically to avoid an alarm from sounding? I don’t know.

If technology isn’t the answer, then what about public awareness campaigns. Not the ones warning against momentarily glancing away from the roadway.

That sidesteps the elephant.

The root of our road safety disaster is “brain off the road,” not “eyes off the road.”

Until we come up with something better, I invite you to try what works for me.

Several years ago, I came up with a mechanism to help alert me when my mind wanders. I put my hands on the steering wheel the way we’re “supposed to.”

It’s uncomfortable!

I try my best to keep my brain focused on the road, but inevitably my mind wanders from time to time. When that occurs, my hands naturally move to where they are more comfortable.

The movement of my hands triggers my realization that my mind is wandering, snapping me to attention.

My close calls have been virtually eliminated.

Something good could, and should, come from these senseless tragedies.

They could lead to the realization that being a safe driver takes more than good intentions and looking out the windshield.

It takes effort to keep our brains focused on the task at hand. Without that, our minds will wander. When in autopilot, our eyes see, but our brains fail to process.

And crashes continue.



Police must respect rights

The drug mule was caught red handed with 27,500 fentanyl pills.

Last week, I reviewed the judge’s finding that the arrest and search turning up that evidence were illegal.

This week, I review the consequences of that illegality. 

We want our police to catch bad guys. And they do an incredible job. Thank you!

We also want police to respect our individual rights.

Individual rights that are most important to us are enshrined in our Charter of Rights and Freedoms  

One of those important rights is not to be detained or imprisoned without good reason. Another is to be free from having ourselves, our vehicles and our homes unreasonably searched.

Our two wants — catching bad guys and a respect for our individual rights — are in conflict.

Police would be a whole lot more effective in the important work they do if they could, as their suspicions lead them:

  • monitor phone calls
  • access bank records
  • make arrests
  • search our bodies, homes and businesses.

But we want police to have something more than mere suspicion before our rights are taken away.

In the context of wire tapping and a search of our homes, we require the police to bring enough evidence to convince a judge to issue a warrant.

In the context of the roadside arrest and search that uncovered the fentanyl, we require the police to have an objectively (viewed from the perspective of a reasonable outsider) reasonable basis to believe that an offence is being committed.

How do we ensure that those requirements are met?  What is the value of black and white words on a page listing our rights, if those rights are not enforced?

It’s not like the police would intentionally run amuck and randomly throw innocent people in prison. But in circumstances where their goal to catch bad guys continually butts up against our individual rights, enforcement is obviously necessary.

And those who drafted the Charter provided for an enforcement mechanism.

That mechanism requires a judge faced with evidence collected in an illegal way to disallow the use of that evidence if to allow its use would hurt the reputation of justice.

The actual wording of section 24(2):

“Where…a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”

That’s the incredible irony of this case. The judge, on his review of well established case law, concluded that he had no alternative but to disallow the prosecution to use the 27,500 fentanyl pills as evidence against the drug mule, because allowing it would have brought the administration of justice into disrepute.

The irony is that the uninformed public reaction to a drug mule walking free indicated that the exact opposite result was achieved. 

Please read the actual court decision:  R v. Rigo, 2018 BCSC 2015,  but I will attempt to nutshell it.

Mr. Justice Brundrett quoted from a Supreme Court of Canada judgment for this sensible principle:

“The repute of the administration of justice is jeopardized by judicial indifference to unacceptable police conduct."

He cited a British Columbia Court of Appeal decision for the proposition that “drivers and the rest of the travelling public have a significant interest in being free to drive on public roads without being subject to unlawful vehicle searches.” 

And he noted that this was not a situation of an officer merely opening the hood or rear of a vehicle for a quick peek.

Mr. Rigo was handcuffed and taken to the police detachment where he was confined to a cell while his vehicle was thoroughly searched including removal of interior mouldings.

Mr. Justice Brundrett then considered the competing factors that would favour allowing the Crown to use the ill-gotten evidence against Mr. Rigo.

He noted that the 27,500 fentanyl pills were unquestionably real and reliable evidence which was critical to the Crown’s case. 

And he specifically addressed the seriousness of the offence:

“The offence itself is serious because of the evils well-known to be associated with fentanyl trafficking. I have no hesitation in accepting that the social harm associated with fentanyl trafficking is very high."

For those reasons, he noted that the public has a significant interest in the case proceeding. But he went on:

“At the same time, I must remember that the authorities binding upon me also direct my focus on the long-term effect that non-compliance would have on the ‘overall repute of the justice system’ rather than the ‘immediate reaction’ to the circumstances of an individual case.” 

Balancing all the factors the case law required him to balance, Mr. Justice Brundrett concluded that he was “…compelled to find that the admission of narcotics into evidence at trial would bring the administration of justice into disrepute.”

This is really complicated stuff.

I might have utterly failed to help you understand that Mr. Justice Brundrett, and our justice system generally, deserve an apology from those who lambasted the very carefully considered legal decision in this case.

I tried my best.



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It was justice, not a travesty

A travesty of justice for the drug mule caught with 27,500 fentanyl pills to go free? 

It would seem so, according to the overwhelming majority of hundreds of Facebook users commenting on news reports of the judge`s decision that was released this past week.

There is a steady flow of incredulous reactions such as:

  • It’s so crazy
  • What a joke
  • Brutal
  • Unbelievable but you can’t fix stupid !!
  • Omg!
  • That just sucks!

Many pointed their fingers at judges, with comments such as:

  • Flog the Judge!!!
  • Hang the stupid judge!
  • I’m feeling like maybe our judges should be replaced
  • Wow, I am disgusted that the judge let this death dealer walk free. 

Others blamed our justice system generally, with comments such as:

  • The system is set up for criminals, why are we surprised?
  • Another example of how screwed our justice system is in Canada!
  • Canadian justice system hard at work again.

If we take the waterfall of incredulous Facebook comments as a reflection of overall Canadian reaction, the judge`s decision dealt a serious blow to the reputation of our justice system.

It is ironic, to the extreme, that it was protection of that very reputation that led to Mr. Justice Brudrett’s decision.

It’s unfortunate that journalists chose to focus their articles on the inflammatory result of a drug mule, caught red handed with 27,500 fentanyl pills, getting off because of a seemingly minor technicality.

And completely ignored Justice Brudrett`s detailed analysis of the law that required that result.

It`s complicated legal stuff, contained within two judgments.

The first, R. v. Rigo, 2018 BCSC 1807, is a 240 paragraph, 15,500 word decision considering whether o the accused’s Charter rights had been breached.

The other, R v. Rigo, 2018 BCSC 2015 is a 51 paragraph, 2,800-word decision considering whether the evidence should be excluded.

In fairness to the news media, complicated legal stuff is difficult to put in a nutshell in a news report. But if the nutshell is so distorted that it delivers a serious blow to the reputation of a justice system the judge was painstakingly protecting, perhaps it should not have been put in a nutshell at all.

I am going to do my best to provide a more balanced nutshell. If I succeed, those of you who commented so negatively about the judge and our justice system might feel like I did when I learned the full story about the Covington school standoff.

One of our basic rights, protected by the Charter of Rights and Freedoms is to be secure from being unreasonably searched by the police.

Another is a right not to be arbitrarily detained or imprisoned.

The rules about how those rights apply to a highway traffic stop have been established through hundreds and thousands of court decisions.

The police must have a “reasonable suspicion” of criminal activity before subjecting your vehicle to an exterior sniffer dog “search.” And that suspicion must be based on objective facts.

The judge listed the facts relied on by the RCMP officer:

“To repeat, Cpl. Catellier relied upon the strong odour of cologne or air freshener coming from inside the vehicle, the fact that the accused’s right arm and hand were shaking when he pulled over, the presence of multiple cell phones including a BlackBerry, the accused’s illogical story, the short duration of his trip from Calgary, and the officer’s belief that Highway 1 was a conduit for drugs, particularly around Chilliwack.”

And he accepted that those facts were sufficient to allow deployment of the sniffer dog, Doods.

But more than suspicion is required before the police can lawfully take next steps of arresting you and searching your vehicle.

In this case, the police officer stated that he would not have made the arrest if it were not for getting a signal from Doods that there were drugs in the vehicle.

In order to decide whether the arrest and search were lawful, the judge had to decide whether Doods had given the signal. 

Mr. Justice Brundrett scrutinized the evidence.

The way Doods had been trained to signal the presence of drugs was a simple one: she was trained to sit.

Doods had not been trained to give the signal with a “partial sit,” and had never before actually done that to indicate the presence of drugs. And she had been accustomed to fully sit even in tight environments.

The dog handler had initially described the partial sit as a “half sit,” but after reviewing the critical portion of a video changed his description to a “quarter sit.”

He acknowledged that if the same thing had happened in training, he would try to bring the dog back and have her reconfirm the signal with certainty, something he did not do at the roadside.

The judge concluded that Cpl. Catellier did not have the objective basis to support his belief that Mr. Rigo was committing a criminal offence. The arrest and search of the vehicle were therefore unlawful. 

But that wasn’t the end of the matter. The judge then had to consider how to handle a situation where the Crown was prosecuting a citizen based on evidence that would not have been collected had it not been for a breach of the citizen’s rights.

The Charter specifically addresses that situation, requiring that the evidence be excluded if, having regard to all the circumstances, allowing it to be used would hurt the reputation of our justice system.

I will share the judge’s reasoning for excluding that evidence, in protection of the reputation of our justice system, in my next column.



More Achieving Justice articles

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About the Author

Paul Hergott began practicing law in 1995, in a general litigation practice. Of the various areas of litigation, he became most drawn to, and passionate about, pursuing fair compensation for injured victims. This gradually became his exclusive area of practice.

In 2007, Paul opened Hergott Law, a boutique personal injury law firm in the Central Interior, serving personal injury clients from all over British Columbia. Paul’s practice is restricted to acting only for the injured victim, never for ICBC or for other insurance companies.

Paul became a weekly newspaper columnist in January of 2007, when his first column entitled “It’s not about screwing the Insurance Company” was published. 

Please feel free to email or call Paul (1.855.437.4688) with legal issues you might like him to write about in his column, or to offer your feedback about something he has written.

Email:   [email protected]
Firm website:  www.hlaw.ca
Achieving Justice Legal Blog:  http://www.hlaw.ca/category/all-columns/
One Crash is Too Many Road Safety Campaign: www.onecrashistoomany.com
Google Plus:  https://plus.google.com/+HlawCanada/posts
Facebook:  www.facebook.com/personalinjurylawfirm
Twitter:   twitter.com/Hergott_Law



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The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet does not warrant the contents.

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