No Fault Insurance BC

BY: PETER UNRUH

PROVING YOUR CASE IN COURT: EVIDENCE

At any civil trial in British Columbia, individuals or corporations making a legal claim or claims (i.e. the plaintiff) against another party or parties (the defendant), are required to prove their case in front of the court. This is done by providing legally permitted evidence in court, in order to support what they maintain is owed to them by and as a consequence of the actions of a defendant.

The plaintiff is required to prove their case and do so on a balance of probabilities, in order for the court to award damages against the defendant. Accordingly, a plaintiff in a motor vehicle accident case must prove that the defendant was negligent and owed a duty of care to the plaintiff. The plaintiff must also prove that as a consequence of the negligence of the defendant, damages or losses were suffered by the plaintiff which were caused by the negligent actions of the defendant.

Our legal system requires that a plaintiff who has been injured as a consequence of a negligent driver must put forth to the court evidence concerning the injuries sustained in the accident (a diagnosis), and that the injuries were caused by the Defendant’s actions. The plaintiff is called upon to provide evidence concerning their long-term medical outlook (or their prognosis). The plaintiff must prove any losses claimed, such as income loss or other medical expenses that have been endured or reasonably could be incurred in the future, in order to be awarded such types of damages against any defendant.

USING EXPERT OPINIONS

In most motor vehicle accident claims, experts are utilized to provide opinions in court on issues relating to negligence or the damages flowing from the negligence.  Experts in accident reconstruction can help determine how the accident occurred and who may be at fault.  Medical experts can be used to prove the nature of the plaintiff’s injuries, including cause and prognosis.  The defendant is entitled to respond to those expert opinions by providing the court with their own experts who offer a different perspective from that of the plaintiff’s experts.  Again, the plaintiff is required to prove their case in order to be awarded damages.

Our courts require such proof as a matter of fairness and justice to all parties.  In so doing, our courts also have strict rules concerning the types of evidence which can be utilized to prove or disprove claims made in our courts.

COSTS ASSOCIATED WITH EXPERTS

Proving a case in court or providing expert evidence for the purposes of settling a claim out of court can be an expensive proposition.  Experts are paid considerable sums of money for their opinions, which are set out in their reports.  They are paid even more for their attendance at court.  There are many expenses which are paid and go well beyond experts’ fees in order for a plaintiff to successfully prove their losses arising form a motor vehicle accident.  If successful, the plaintiff is entitled to the reasonable recovery of those expenses which have been necessarily incurred to prove their case.  Such expenses are otherwise know as disbursements.

NEW LAW LIMITING RECOVERY OF DISBURSEMENT FEES

On February 12, 2021, on behalf of the Attorney General of British Columbia, David Eby, the NDP government sent out a brief communication which entirely changed the law concerning the recovery of disbursements.  The law exclusively applied to disbursements in motor vehicle accident cases.  Effectively, what the NDP have done, is severely limit a successful Plaintiff’s right to recover the disbursements which have been necessarily incurred to prove their claims.

The NDP specifically limited those plaintiffs making motor vehicle accident claims from recovering any more than a meager 6% of their disbursements, based on either the amount of the court award or the settlement amount if the matter does not proceed to court.  Essentially, this means that if a person goes to court and successfully obtains a judgement against a defendant in a motor vehicle case, (or settles prior to court) they will come nowhere close to recovering the court expenses they have paid to successfully prosecute their claim.  For example, if a plaintiff successfully receives a judgment of $100,000 at trial, they are limited to recovering $6,000 in trial expenses despite the fact that their trial expenses may be thousands of dollars in excess of that figure.

ICBC, on the other hand, can spend almost endlessly to defend a case, seemingly without consequence.  For example, they can needlessly deny liability claims and force the plaintiff to present expensive accident reconstruction evidence.  In my experience, ICBC almost always denies the nature and extent of the plaintiff’s injuries, often suggesting that the plaintiff is in no worse position than before the accident.  Again, the plaintiff bears the burden of proving their case and must hire medical experts.  Under the onslaught of defences raised by ICBC, a plaintiff could prove their case, receive a just award, but be bankrupted in the process because Minister Eby has severely limited their right to collect the costs of running a fair trial.   Given the massive finances of ICBC, the 6% rule would have no effect.  They can afford to spend dramatically unequal amounts on defending claims.

The NDP government and ICBC, through this legislation, have so heavily stacked the odds in favour of ICBC that most British Columbians will likely no longer be able to access the courts for justice.  They simply will not be able to afford the process, even if they fully succeed in court.  Similarly, British Columbians will be unable to afford to challenge the findings of liability or even meaningfully pursue a reasonable settlement for their losses.  This was the apparent intent of Minister Eby.

The NDP government has, through these most recent arbitrary and vindictive changes to our laws regarding recovery of court expenses, effectively undercut any realistic attempt by British Columbians involved in motor vehicle accidents to challenge ICBC and have a just outcome to their case.  Accident victims will likely be unable to afford to meet the primary requirement of motor vehicle litigation, which is to prove ones’ case, because they cannot get those expenses back from ICBC at the conclusion of their case.

Again, these changes only apply to one set of cases, which are motor vehicle accidents, and the changes intentionally only benefits one entity which is ICBC.  With these changes legislated by the NDP, British Columbians involved in motor vehicle accident cases seem completely handcuffed in terms of the evidence they can bring to court or otherwise use to prove their case.

WHAT ARE THE EFFECTS OF LIMITING RECOVERY OF DISBURSEMENTS?

The effects are far reaching and dramatic.  The NDP has, for example, made it extremely difficult, if not impossible, for non-English speaking plaintiffs to prove their case in court as they will likely receive only a fraction of the interpreter/translator fees which necessarily need to be paid in order to have evidence translated  into the English language.  Low-income and moderate income earners are further disadvantaged by these changes.  That is because a successful plaintiff in a motor vehicle case will only receive a fraction of the costs they will incur in order to prove their injuries.  They will be unable to afford to have their cases heard or even prosecuted against an ICBC represented defendant.

Sadly, that is the intent of the NDP legislation.  It is specifically designed to prevent a specific class of claimants, (those involved in motor vehicle cases), from being able to access justice.  It specifically and dramatically benefits ICBC.  This egregious attack on victims of motor vehicle accidents has all been done through the arbitrary stroke of a pen by the Attorney General Eby.

What is worse is that at the same time, victims of motor vehicle accidents are up against an incredibly powerful and monolithic Goliath known as ICBC.  In am finding that this Crown Corporation is currently as aggressive and adversarial in defending claims as at any time I have experienced in my thirty years of practicing law in British Columbia.  ICBC has instituted a system by which any offers made to victims of car accidents are based on internal ICBC criteria crudely referred to as a “meat chart”.  In so doing, I am finding that ICBC refuses to consider the individual suffering, circumstances or personal experiences of the accident victim or the effect of the accident on the victim’s family.  They simply do not seem to consider the actual victim of a car accident.  I have found lately that ICBC offers are, at times, ridiculously low and bear no relationship with the true suffering, disability or effect the accident may have had on the claimant.  As a consequence, I am finding that my clients are being forced into trials they do not seek.  Thankfully, the judges who heard some of my recent court cases came to a much better understanding of the true difficulties my clients were facing.

SOME CLIENT EXAMPLES AND TALES FROM THE TRENCHES

In recent a recent trial my client received an offer of just under $32,000.  We went to trial and I obtained judgment on her behalf of over $192,000.  In another trial my client was offered just over $42,000 and we were forced to go to trial, where I obtained judgment on behalf of my client in excess of $220,000.  In another recent judgment I obtained a judgment on behalf of my client in excess of $1,200,000 beyond ICBC’s offer.  Most recently, I obtained a judgment for over $317,000 on behalf of my client.  ICBC’s offer was just over $46,000.  In each of these cases, my clients did not want to go to trial but ICBC were incredibly intransigent and would not negotiate.  ICBC had followed their “meat chart” and seemed entirely disinterested in the experiences or losses my clients had incurred due to a negligent driver.  In each case, ICBC had poured enormous resources into investigations of my client, their own expert fees and their defence costs.  They were prepared to defend the callous positions they took at any cost.

WHAT’S NEXT?

Now, it seems, the NDP along with ICBC have determined that they must stack the deck even further against the motoring public in British Columbia.  For accident victims in British Columbia, they will now be required to pay most of the costs associated with proving their claims, particularly those who decide not to accept ICBC’s “meat chart” offers (should such an offer even be made).

ICBC has enormous financial resources and power at their disposal.  They have apparently been encouraged by the NDP to use their enormous financial resources against victims of accidents in this province, without much of any oversight, except by our courts.  They have been granted unparalleled access to the personal information of anyone driving in British Columbia or anyone involved in an accident on a B.C. roadway.  They have access to all driving records.  They can access the medical information of claimants.  They often easily obtain all manner of personal information as well.  ICBC has enormous resources which are dedicated to hiring investigators to follow and film claimants during their daily activities.  They are quite effective in conducting online investigations of claimants.  ICBC can and does easily absorb these types of costs.

The net effect is that such activities are largely designed to undermine, intimidate, cajole or at the very least, embarrass accident victims who have done nothing wrong other than to have had the grave misfortune to be in the path of a negligent driver.  This becomes even more tragic now that the NDP is attempting to limit accident victims to recovering only a fraction of the expenses that were necessarily incurred to successfully prove their motor vehicle claim in this province. This is an unparalleled assault on accident victims and their access to justice.  There is no balance or equality in any of what the NDP has done to assist ICBC.

The NDP is effectively attempting to nullify the voices of those who disagree with the way they have been treated by ICBC.  They are attempting to deny motor vehicle accident claimants the right to prove their case by denying them the right to recover their reasonable and necessary litigation expenses.  We will fight these changes with every measure available to us.  We hope we will prevail against this injustice.   I will have more to say on this issue in the next few weeks.

But let me leave you with one final thought.  

If the NDP can go to such lengths to try to tip the scales of justice so much in favour of ICBC, the question becomes which group of litigants is the next target for the NDP and Minister Eby?  Who shall the NDP next try to strip of legal rights to the point that they cannot access justice or defend themselves, and which massive Crown Corporation or government agency will be the beneficiary?

 Note to our Readers: This is not legal advice. If you are looking for legal advice in relation to a particular matter, please contact Peter Unruh.