League and Williams Lawyers

Author: Darren Williams

  • ICBC Claims: when the trip from A to B involves a crash

    ICBC Claims: when the trip from A to B involves a crash

    Most people use roadways every day, unfortunately, some of these trips result in collisions and injuries.  Fortunately, those who have been involved in collisions on roadways in British Columbia and are injured can make ICBC claims to access benefits.  However, the benefits available through ICBC depend on a number of factors, including fault (or responsibility) for the crash.

    ICBC claims in B.C. can generally be divided into two categories:

    1. Claims where the person making the claim is at fault for the crash, and;
    2. Claims that someone other than the person making the claim is at fault for the crash.

    The Insurance (Vehicle) Act requires ICBC to pay people injured in crashes minimum mandatory benefits regardless of their fault or responsibility for the collision.  These are called “no-fault benefits”.  Those who are injured and who are not responsible or at fault for the crash (even partly), can also make ICBC claims for additional compensation under the at-fault person’s insurance.  This claim against the other driver is called a “tort claim”.  This is an important difference because the benefits provided by a person’s own no-fault insurance (as described below) are minimal compared to the benefits available through a tort claim from the insurance policy of the person responsible, or at-fault for the crash.

    No-Fault ICBC Claims in BC

    No-fault benefits are available even if a person is responsible for causing a crash, for example:

    • A person slides off the road and crashes into a tree and breaks their leg, or;
    • A person rear-ends someone and hurts their own neck.

    No-fault benefits are provided to anyone who is injured as a result of the “operation of a motor vehicle” in B.C., whether they are in the vehicle or not (you might be a pedestrian or a cyclist struck by a vehicle).  However, in order to qualify for no-fault benefits a person must either have a B.C. driver’s licence or live with someone who does.  At law, ICBC must provide up to $300,000 in no-fault benefits.  Sounds good, right?  Unfortunately, no-fault benefits are much more limited and harder to access than they sound and are restricted to two primary forms:  temporary wage loss supplements, and partial rehabilitation benefits.

    If a person’s injuries cause them to lose time at work, no-fault benefits only pay up to (a maximum of) $300 per week of lost wages (this increases to $740 on April 1, 2019).  However, they will only pay this if all other sources of income replacement (EI, CPP, short or long term disability) have not already replaced 75% of the person’s pre-accident income.  For example, if a person was making $1,200 per week prior to the accident, and after the accident short term disability was paying them $800 per week, ICBC would only pay an additional payment of $100 per week, for a total of $900 per week.  In many cases, this shortfall makes it tough to pay the mortgage, buy groceries and cover other family expenses.  Also, this temporary wage loss replacement only lasts for 104 weeks before it is permanently terminated.

    In addition to some temporary wage loss replacement, no-fault benefits also provide limited rehabilitation expenses (again, part of the global $300,000 cap on no-fault benefits).  These expenses are largely at the discretion of ICBC, although, they are intended to be funded whenever “medically necessary”.  Rehabilitation expenses may include physiotherapy, massage, chiropractic and other medical treatments.  No fault benefits also provide funding for an injured person’s inability to care for themselves (nursing care) as well as caring for their household (for example, yard work).  Obtaining approval for payment of these benefits can be difficult and where they are improperly denied, the only recourse is to sue ICBC for breach of your no-fault benefits.  Unfortunately, this is common.

    Benefits When the Other Driver is At-Fault (Tort Claims)

    A “tort claim”, refers to the ability to sue someone for the losses caused by that person’s negligence.  In a motor vehicle accident caused by another driver, or at least partly caused by another driver, a person has a tort ICBC claim against the other driver (which their insurance will cover) to the extent they are at fault.  The amount of compensation available depends on the extent of the injuries, what effect they have on a person’s life, and the amount of insurance carried by the other driver.  Most drivers carry at least $1,000,000 in insurance (per collision).  However, if a person owns significant assets (such as a house) in the same name as the vehicle driven by them, it is strongly recommended that they carry at least $2,000,000 in insurance for the additional cost of about $100 per year.

    Importantly, in a tort claim the types of compensation that can be claimed are not limited by the same categories as under no-fault benefits.  Remember, in these cases the person who isn’t at fault for the accident is suing the other driver for their negligence (which is why they have insurance in the first place), and they are entitled to be put in the same financial position they would have been in had the other person not injured them.  As a result, they are entitled to payment for all of their lost wages, their medical expenses, their future loss of earnings due to disability, as well as the pain and suffering for the general effect that the injuries have on their life.  While the prospect of going to court often deters people from making a claim, it should be known that most people are able to get fair compensation through negotiation and more than 95% of cases settle out of court.

    It is also important to note that significant changes have been legislated and will apply to crashes that happen after April 1, 2019 where compensation for the pain and suffering of minor injuries, even when the person is not at fault for the accident, will be capped at just $5,500.  We will write more about these proposed changes in a future blog post.

    If you, or a loved one has been involved in a motor vehicle crash, it is advised to get legal advice about making ICBC claims.  League and Williams offers free consultations and has been voted as the Best Law Firm in Victoria, BC for 2018 by the readers of Victoria News, and is also one of the “three best rated” injury firms in Victoria, BC.  We are proud to serve clients across BC and are able to effectively assist clients in their recoveries, including paying for treatment when ICBC will not.

    Darren Williams is the Principal Lawyer of League and Williams (LaW) and has handled over 1,200 motor vehicle claims for injured parties in 17 years.  He is a lawyer specializing in injury law, estate disputes and marine law at League Law, in Victoria, B.C., Canada and can be reached for comment at info@leaguelaw.com or 250-888-0002. 

  • Estate Law Explained in English, Punjabi & Hindi: Helping those Unfairly Disinherited

    Estate Law Explained in English, Punjabi & Hindi: Helping those Unfairly Disinherited

    Can those unfairly disinherited challenge a will in BC?

    Unfortunately, many people in British Columbia discover that they have been unfairly excluded from an estate by their spouse or their parent. Often, the reasons given for the exclusion are unfair or even discriminatory.  Sometimes the exclusion could have been motivated by cultural tradition.

    Unfair reasons for disinheritance may include:

    • Being the wrong sex,
    • Liking or marrying the wrong partner,
    • Studying the wrong subject,
    • Choosing the wrong career,
    • Practicing the wrong religion; or,
    • Simply being the less favored child.

    Sometimes, a sibling or other person has exercised undue influence or has taken advantage of a person with questionable capacity to make changes to their estate. Sometimes the will maker is under a mistaken belief about the disinherited person.

    When a person has been disinherited by a spouse or parent, there are many circumstances where the disinherited person can challenge the estate, however, the time allowed to do so is limited.

    Avoid costly mistakes, learn about BC estate law

    What adds insult to injury is that many people are unaware of their rights under British Columbia law to challenge the unfair will of a parent, adopted parent or spouse. To this end, League and Williams has produced a series of estate law blogs and estate law video blogs (in English, Punjabi and Hindi) to improve awareness and knowledge of BC Estate Law and help those who find themselves unfairly disinherited.

    BC estate law video blogs in English

    Fixing a broken will; what can the court do? (in English)

    https://league.dojogakure.com/posts/broken-will-court-fix

    Undue Influence – when will makers are persuaded to disinherit (in English)

    https://league.dojogakure.com/posts/persuaded-disinherit-undue-influence-will-maker/

    Disinheritance – that’s it you’re out of the will! (in English)

    https://league.dojogakure.com/posts/disinheritance-thats-it-youre-out-of-the-will/

    Can adopted children challenge their former parents’ will? (in English)

    https://league.dojogakure.com/posts/adopted-childrens-estate-dispute/

    Disinherited? Reasons a BC estate can or should be challenged? (in English)

    https://league.dojogakure.com/posts/disinherited-reasons-bc-estate-can-challenged-video-blog/

    Who can challenge an unfair will? (in English)

    https://league.dojogakure.com/posts/video-blog-unfair-will-estate-disputes/

    BC estate law video blogs in Punjabi and Hindi

    Sometimes language is a barrier to understanding a person’s rights under BC estate law, making those who do not speak or write English fluently at a higher risk of being unfairly disinherited from an estate. To address this, we have translated our information on BC Estate Law into Hindi and Punjabi and are working to better serve those who are a part of the Punjabi, Hindi and Chinese communities who find themselves unfairly disinherited in BC.

    For those who speak Punjabi, League and Williams is working with Gurinder Bains to produce the following video blogs and improve service to this group of clients.

    Why having a will is important (Estate Law video blog in Punjabi)

    https://www.youtube.com/watch?v=8p-itEXn4Ng

    Undue Influence in Estate Planning (Estate Law video blog in Punjabi)

    https://www.youtube.com/watch?v=fFqLASF2LFo

    Disinherited? We can help. (Estate Law video blog in Punjabi)

    https://www.youtube.com/watch?v=_YXaKl26Ab4

    Challenging a Will: Time is Limited. (Estate Law video blog in Punjabi)

    https://www.youtube.com/watch?v=LwpvaW26RfI

    For those who speak Hindi, League and Williams is working with Mayuri Ganatra to produce the following video blogs and improve service to this group of clients.

    Estate Law Video Blog 1 in Hindi

    https://youtu.be/xaEMYMqXhts

    Estate Law Video Blog 2 in Hindi

    https://youtu.be/mh0FusIq-EE

    Estate Law Video Blog 3 in Hindi

    https://youtu.be/M68UeviVlcQ

    Estate Law Video Blog 4 in Hindi

    https://youtu.be/lIpzER-jifE

    Disinherited? Seek legal advice, free consultations offered.

    If you or a loved one have been unfairly disinherited by a parent’s or spouse’s estate in British Columbia, contact our lawyers for a free consultation at 250-888-0002, or via email at info@leaguelaw.com.

  • You signed a waiver, but did you say goodbye to your right to sue in BC?

    You signed a waiver, but did you say goodbye to your right to sue in BC?

    A waiver (or release) is an incredibly common and powerful clause.  Hardly a day goes by without coming across one or more of them.  Getting on a chairlift or a ferris-wheel, parking a car, or even leaving clothing at a dry cleaner often involves agreeing to a waiver.  A waiver is an agreement not to claim for damages caused by someone else’s carelessness.  They are often effective in avoiding liability, however, under certain circumstances they will not be enforceable.

    Agreeing not to sue

    The core purpose of a waiver is to promise not to sue for any injury, death or property damage arising out of an activity.  This includes not suing for loss caused by the clear negligence of another person.  In British Columbia, claims against businesses and activity operators are barred as a result of an agreed upon release.

    Insurance companies like releases because they reduce the number of claims they have to pay because they reduce the likelihood their insured will be successfully sued.  

    Businesses like releases because they reduce the cost of their insurance.  If a business cannot get liability insurance, a well-drafted and presented waiver enables a business to avoid legal responsibility for negligence of the business and its employees.

    The idea that a person may be badly injured by the obvious negligence of another, and be without legal recourse is frightening. However, just because a person has signed a release, does not mean that the waiver will be enforceable (effective).  In order to be effective, the waiver must meet specific legal tests.  If the waiver fails to meet these requirements, a person or business may still be successfully sued.

    The legal tests waivers must meet to be effective

    Many releases are enforceable, such as the one upheld in a recent case (Loychuk v Cougar Mountain Adventures Ltd.).  However, for a waiver to be upheld, it must meet several legal tests.  In general, the waiver must meet the following three tests:

    1. Must actually apply to the facts of how the accident occurred;

    2. Must not be unconscionable; and,

    3. Must not be against public policy.

    1. A waiver must apply to the facts of the accident

    Waivers must apply to the facts of the accident. To meet this test, the court considers whether the terms of the waiver included a description of the risks that caused the person’s injury.  A release only covers risks considered at the time the waiver is signed or accepted.

    The cause of the injury that the release seeks to avoid legal responsibility for, must be clearly described in the waiver; and, be generally foreseeable by the parties. For example, if you are skiing it is likely in your mind you might ski off a poorly marked trail and injure yourself. It is foreseeable to be injured in an avalanche that could have been prevented. However, being shot by an employee carelessly handling a firearm would not be foreseeable.  You would also not imagine that poor practices in the ski lodge would result in food poisoning.  Events that are not foreseen, are not covered by a waiver.  

    Waivers must use clear language to be effective.  The courts will consider whether the participant actually understood what they signed.  A signed release is assumed to have been read and understood.  However, being told to sign a release in a hurried or casual manner; or, failing to give adequate time to read and understand the release will result in the waiver being ineffective.  This is because the service provider knew or should have known that the participant was unaware of the legal or practical effects of signing the waiver.  Service providers and businesses must take reasonable steps to advise those who are signing waivers, even though there are no special obligations to ensure people have understood what they have signed.

    2. A waiver must not be unconscionable

    Secondly, a valid waiver must not be unconscionable.  In other words, even if the release applies to the facts of an accident, the court may find the waiver unenforceable because it is unconscionable.  A release is unconscionable when a person has abused their power to get the release signed and then relies upon the waiver. 

    That said, participants almost always have the choice between agreeing to the release and participating, or not participating at all.  Courts uphold releases even in cases where the participant travels long distances to participate in an activity, only to find that if they don’t accept the release they will be turned away.  The courts do not generally view inconvenience suffered by a person because they cannot partake in an activity unless they sign a release as an inequality in bargaining power that makes signing the waiver unconscionable.

    3. A waiver must not be against public policy

    The third main requirement of a valid release is that the waiver must not be against public policy.  That is, the waiver cannot be contrary to the interests of the general public as a whole.  In BC, courts have rarely exercised the power to overturn a waiver because of public policy.  Releases in adventure tourism activities, for example, generally do not give rise to public policy concerns because, by definition, these activities have inherent risk and people generally expect some risk.

    Many activities with reasonable care of the business, should be low risk.  A court might find it is against public policy to enforce a release where doing so discourages routine safety practices.

    When in doubt seek legal advice out

    Properly drafted and presented waivers can provide business owners with strong legal protection from claims.  Business owners should seek legal advice to draft the waivers they use to ensure they can be relied upon if and when needed.  

    Those injured should never assume a signed release provides a complete bar to suing for damages. Injured victims should seek out legal advice before assuming they cannot claim fair compensation. This is particularly true in cases where there has been significant injury, property damage or death.  Under those circumstances, it is not unreasonable to ask a judge to decide whether the release is enforceable.

    If you have a question about this topic or another legal issue, contact us for a legal consultation.  Reach us at 250-888-0002, or via email at info@leaguelaw.com.

  • ‘Tis the Season – Holiday Parties and the Law

    ‘Tis the Season – Holiday Parties and the Law

    Holiday Cheer May Bring Legal Liabilities

    Welcome to this week’s blog on the law.  As the holiday season approaches, many people and businesses plan on hosting holiday parties.  Most of these parties involve serving alcohol, which in turn gives rise to certain legal responsibilities for the host of the party. This area of law is called “social host liability”, and in this week’s blog, I will outline some important points of social host liability.

    What is Social Host Liability?

    In 2006, Canada’s highest court found that a social host does not, as a general rule, have a duty to protect the public from a guest who consumes alcohol.  That case involved someone who hosted a house party, and told their guests to bring their own booze.  The host did not serve any alcohol, and did not see that one of the guests was intoxicated before the guest left the party and badly injured another person in a car accident.  However, the court’s decision would likely have been different if the host was serving alcohol to its guests, or the host saw that the guest was intoxicated when they left the party.

    People who serve alcohol as part of their business, such as restaurants and pubs, do have a duty to the general motoring public to ensure people they serve alcohol to do not pose an unreasonable risk to others.  Most businesses address this duty by training their staff to monitor customers drinking and providing means to access safe rides home.

    Also employers who host holiday office parties also owe a duty to their employees because there is generally an expectation of supervision in an employment relationship, and this supervision often includes what people do at office parties.  On the other hand, people who are hosting a house party for friends may owe a duty to people who might be harmed by their guests if the host is providing alcohol to their guests, or they observe their guests to be intoxicated when they leave the party.  These duties mean that if someone is hurt as a result of not complying with a duty, they can be sued.

    5 Tips to Keep Holiday Cheer from Turning into Legal Liabilities

    If you are hosting a Christmas party, particularly if you are an employer who is hosting a party for your employees, here are some quick tips to help address your duty to reduce the risk of harm coming to others:

    1.   Choose you party location wisely.

      Avoid having your party in a location where you know it is difficult for people to obtain safe rides home from.  If you are an employer, try to have your party at a licensed establishment, such as a restaurant or pub.  The duty the business has to safely serve and monitor guests is greater than the duty of the employer to monitor their guests, and will help to protect people from guests who have too much to drink.

    2.   If you have an open bar, staff the bar with a qualified bartender.

      If it is decided to host your party somewhere other than a licensed commercial establishment such as a restaurant or pub, it is wise to staff the bar with someone who is qualified to be a bartender.  A counter full of booze for people to help themselves is generally a bad idea.  You do not need to track people’s drinks by having “drink tickets”, but someone who is tasked with serving drinks that can monitor those who appear impaired will help protect that person, and others, from harm.  If you are an employer that is paying for the alcohol, you should either provide drink tickets to limit the consumption, or close the “open bar” well before the end of the party to prevent over-consumption.  An employer paying for unlimited alcohol is far more responsible for its effects than an employer who limits it availability.

    3.  Serve food throughout the evening.

      Serving food throughout the evening will not only reduce the effects of alcohol consumed, but will also typically reduce the amount of alcohol consumed.

    4. Always have options for your guests to find a safe ride home.

      You cannot force a guest to accept a safe ride home, but making them available goes a long ways to avoiding harm.  If you invite a friend who you know likes to drink, think ahead about how you will help get them home. Don’t leave it until the end of the night to figure out.  Make it easy for your guests to make good decisions about getting home safely.

    5. Invite the family, or at least the spouse or significant other.

      The purpose of holiday office parties, is of course to celebrate a year’s work well done.  As a result, holiday office parties often involve a great deal of cheer and enthusiasm by employees, particularly when alcohol is involved.  Accidents and even conflicts are not uncommon, but people tend to drink less or at least behave better, when their spouses are around, and particularly if their children are present.  Guests often still enjoy their drinks, but to less of an extreme if their family is there.

      Wishing Everyone a Merry (and Safe) Holiday Season and New Year

    In closing, nobody likes a party pooper but nothing wrecks a holiday season more than a death or injury that could have been avoided.  All of us at League and Williams, wish all of you a merry (and safe) holiday season. I hope you have learned something about the law from this blog.  Please feel free to like us on Facebook, follow us on Twitter, or subscribe to our YouTube channel to receive notice of our future weekly video blogs on the law.

    If you have been in an accident, do not hesitate to contact us via phone at 250-888-0002 or via email at info@leaguelaw.com

  • Acts of Dog & the Law in BC: Risk & Responsibility

    Acts of Dog & the Law in BC: Risk & Responsibility

    Personal Injury & Property Damage – Who Fetches the Bill for Acts of Dog?

    What are the legal and financial consequences when a dog injures somebody or causes property damage?  What can dog owners do to reduce or avoid those consequences?  Those are the questions being answered in this week’s blog on the acts of dog.

    It’s important to note that when it comes to legal responsibility for an act of dog or the resulting dog claim, it applies not only to dogs that you own, but also dogs the are under your care or even those dogs that are on your property with your permission.  Dog owners can often be sensitive to the criticism of others, not unlike how some are sensitive to criticisms of their children.  After all, dogs aren’t just man’s best friend – they are often valued as members of our families.

    This blog is not about any specific breed of dog, nor is it about how their owners train or care for them.  Any breed of dog can be either completely harmless or dangerous, depending on the circumstances.  This blog discusses how the law can hold a person responsible for injury, damage or death caused by a dog, and why having insurance is critical. 

    3 Ways People are Held Accountable by the Law for Acts of Dog

    There are three principle ways that the law holds people responsible for harm caused by a dog:

    • General Negligence Law
    • Occupiers Liability Law
    • Scienter

    General Negligence Law

    General negligence law requires that if harm to others from the behaviour of the dog is foreseeable, the person whose control the dog is under has a responsibility to prevent the harm.  This is true regardless of the ownership of the dog, or the location of the dog.  For example, if a person takes a friend’s dog to an on-leash park, and lets the dog off the leash, and the dog knocks an elderly person to the ground, breaking their hip, the person borrowing the dog will likely be responsible for the injuries caused.  It wasn’t their dog, it wasn’t their property, but because they had control of the dog at the time, it is their responsibility.

    Occupiers Liability Law

    The second way that the law holds people legally responsible for the acts of a dog is when the damage occurs on property controlled by you.  This is because in BC a person who controls property must take reasonable steps to ensure activities conducted on their property do not pose unreasonable risks to others on their property.  For example, a person decides to host a backyard barbecue and invites all of their friends to bring their dogs. It is reasonable to think that some of the dogs won’t get along, but none the less, the person hopes for the best. During the barbecue, a dog fight ensues, and a guest is badly bitten, suffering nerve damage to their dominant hand.  They find themselves unable to work as a result.  Even though it was not the property owner’s dog that did the damage, because of the property owner’s duty to ensure people are reasonably safe in using the property, the property owner may be held responsible for the injuries.

    The Law of Scienter

    The last legal basis for liability is based on an old legal maxim called scienter – which is latin for, knowledge of poor behaviour.  Scienter means that if the dog has demonstrated a dangerous behaviour previously, and the owner of the dog knew about, the owner may be liable if that behaviour hurts someone.  For example, a dog owner is aware their dog likes to chase motorcycles because they have seen the dog chase motorcycles.   One day the owner forgets to tie the dog up and it chases another motorcycle and the motorcyclist loses control and is badly injured. The dog owner would likely be entirely at fault for the accident and held responsible for the resulting injuries.

    How to reduce the risk of acts of dog?

    These are all tragic, but entirely realistic scenarios.  Given this, what can a dog owner due to ensure that man’s best friend doesn’t do serious financial damage?  First, dog owners should take care to have their dog under a degree of control that is appropriate for the circumstances.  Second, dog owners should ensure that they are properly insured for the risk that their dog could cause injury or property damage.

    Many people don’t know that their homeowner’s insurance policy includes $1 million in liability insurance.  This insurance will cover a person’s costs for a legal defence, as well as any money that is needed to pay for the damages caused by their dog.  This is true even if the accident happens when they and the dog are away from the property, such as at the park.  

    The same is true of renter’s or tenant’s insurance policies, and such insurance often costs around $35 per month.  In the last 10 years, approximately 25% of all claims made under homeowner’s and renter’s insurance policies were due to a dog causing injury or property damage.  In the last several years, the average value of a dog related insurance claim has been between $35,000 and $50,000.  Obviously, no dog owner would want to be responsible for this type of debt.  So, being covered by this kind insurance is wise, and can be bought separately if needed.

    In closing, dog owners, regardless of the breed, should do the responsible thing by ensuring they’ve reduced the risk by exercising reasonable care and control of their dog and by being appropriately covered by insurance.  Rarely does any dog intend to cause any harm, but unfortunately, the intention of a dog matters not when a dog owner is being sued for damages.  I hope you found this blog helpful and thank you for reading.

    We hope you have learned something from this week’s video blog.  Please feel free to like us on Facebook, follow us on Twitter, or subscribe to our YouTube channel to receive notice of our future weekly video blogs on the law.  League and Williams serves clients across British Columbia and is headquartered in Victoria, BC.  Our expertise is in injury law, estate disputes and marine law.  If you are injured and would like a free consultation, contact us via phone at 250-888-0002 or via email at info@leaguelaw.com.  We are here to help injured parties get the fair compensation that they are entitled to.

  • Hindsight is 1080p: Video Evidence and ICBC Motorcycle Claims

    Hindsight is 1080p: Video Evidence and ICBC Motorcycle Claims

    Motorcycle Ride Ends in Tragedy

    It was a beautiful September day for a ride.  Mr. G and his friend rode their Harley Davidsons to a local B.C. restaurant to enjoy lunch and then began the casual trip home.  Both were seasoned riders with more than 30 years of experience riding at the time.  Unfortunately, the trip home ended when Mr. G hit the back of the stopped vehicle making a left turn, and he suffered life altering injuries.  The driver of the truck claimed that Mr. G was at fault for the accident for failing to keep proper lookout, and failing to stop in time or avoid the collision. Meanwhile, Mr. G claimed that the driver of the truck was at fault for the accident, having stopped abruptly and failing to signal his intentions to make a turn.  The lack of agreement and convincing independent evidence about what had happened on September 14, 2013 led to a three-day trial in February 2017 and a BC Supreme Court decision dated May 19, 2017.

    Liability in Dispute – Court Left to Decide Fault

    The BC Supreme Court relied on the evidence given by experts and other witnesses to decipher what had happened that day and determine who was at fault for the accident. There were discrepancies between the testimony of the driver of the truck, the motorcyclist and other witnesses.  Notably, the legal burden was on the motorcyclist, approaching from the rear, to prove that he was not at fault for the accident.  Ultimately, the court found that the motorcyclist was 75 percent at fault while the driver was 25 percent at fault for the accident.

    This means that when damages suffered by Mr. G. come to be assessed by the court, the driver of the truck is responsible for 25% of Mr. G’s damages (such as pain and suffering, lost wages, uninsured medical expenses, etc) and Mr. G. will be unable to collect or be out of pocket the remaining 75%. If the motorcyclist was entitled to $400,000 in damages because of the accident, he would be awarded $100,000 from the driver of the truck.

    Video Evidence Can Mean More Just Results

    What if the motorcyclist had been wearing a helmet camera at the time of the accident? What if some other driver had dash camera footage of what had happened?  What if there was clear, compelling video evidence about what happened on the day of the accident?

    The matter might never have found itself before the courts 3.5 years after the accident, or that if it did find itself in court, that a much shorter (or more certain) trial would have been needed, meaning the court might have been able to address the issue sooner. It is likely  that expensive expert opinions about what happened also would not have been needed.  It is also possible that the allocation of fault might have been substantially different.  Ultimately, it is likely that the motorcyclist would not have faced as much uncertainty and been able to resolve his claim earlier and without the risk of trial.

    Having worked for accident victims, including motorcyclists, over the past 17 years, League and Williams understands the the value of clear, persuasive evidence cannot be understated when it comes to achieving timely and fair results after an accident.  Video evidence can be very helpful to accident victims. Thankfully, it is becoming increasingly common for video evidence from dash cams or helmet cams to be available in the wake of a crash.  To help, League and Williams is giving away two, hi-def helmet cameras on July 12, 2017 – see our Facebook page for details.

    If you, or someone you care about has been involved in an motorcycle accident contact us at 250-888-0002 or by email at info@leaguelaw.com for a free consultation. Our priority is our client’s recovery. We do not get paid until you do, and are BC injury law experts

  • Disinheritance and Deception – Disputed Estate Goes to the Supreme Court of Canada

    Disinheritance and Deception – Disputed Estate Goes to the Supreme Court of Canada

    Bargaining for Elder Care – the Promise Made

    There were three adult children, Gloria, Max and Nate – each of whom had been promised a third of their parent’s estate including the family home by their father.  As is common, when their father died, everything was left to their mother.  As time went on, the mother was eventually unable to care for herself at home.  Wanting to keep their mother in her home, Gloria, unwilling or unable to care for their mother herself, made a deal with her brother, Max: if he moved back to Victoria, BC, Canada from England to care for their aging mother until her death, that she would agree to sell to him her expected one third interest in the family home, a home that had been built by their father some 60 years earlier.  The home having special meaning to Max, Max packed up his life and made the move, caring for their mother until her death three years later in 2010.

    Deception, Death & Disinheritance – a Recipe for an Estate Dispute

    Gloria held sway with their mother – so much so, that upon their mother’s death, Gloria revealed that their mother had transferred all of her assets to a trust of which Gloria was the only beneficiary.  Gloria’s actions resulted in the entire disinheritance of both brothers, betrayed by a sister who used her influence over their mother to exclude them from the estate. To make matters worse, Gloria then proceeded to refuse to sell to Max the interest in the family home, breaking the pledge she had made to him.

    Dismayed, Max sought to right the wrong that had been done and disputed the estate – suing not only for his fair share of the estate from the disinheritance but, also to hold his sister to the promise she had made to sell Max a one third of interest in the family home.

    Uncertain Certainties and the Law – Promises and Probabilities

    The disinheritance went to trial and the trial judge found Max’s sister had exerted undue influence over her mother in causing the mother to put all of her assets in her daughter’s name.  As a result, the judge ordered all of the assets back into the mother’s estate, and divided the estate equally into thirds.  Importantly, the trial judge also found that Max’s sister had to make good on her promise to sell her one-third interest to Max, because although the sister did not own the interest in the home when she made the promise, it was reasonable for Max to expect that Gloria would after their mother died. 

    In holding Max’s sister to her promise, the trial judge found the key components of “proprietary estoppel” were met:  there was a promise by the sister, that Max reasonably relied on, that was unfairly broken and caused Max detriment.  However, Max’s sister appealed to the BC Court of Appeal, and two of three judges found that Max’s sister could not be held to her promise because she didn’t own the one-third interest in the home at the time she made the promise, and it was not “certain” that she ever would.

    Is it reasonable to require certainty when making a promise about something that a person does not own at the time the promise is made (but is likely, but not certain, to own in the future)?  Are contingent promises valid – or are those who rely on them without recourse if the promise maker reneged?  These questions merited an appeal to the Supreme Court of Canada, which heard the case on May 26, 2017.  

    The Argument Before the Supreme Court of Canada

    League and Williams’, Darren Williams appeared before the 9 judges of the Supreme Court of Canada to argue the case on Max’s behalf.  Mr. Williams argued that the BC Court of Appeal was wrong in insisting there be absolute certainty in the sister’s ability to make good on the promise.  What followed was a lively debate with the 9 justices on the level of probability needed in order for a person to be held to the promise that was made.  Does the outcome of the promise have to be as certain as death or taxes?  Or is reasonable probability enough?  

    The decision of the Supreme Court of Canada is expected in the fall of 2017.  Those who are making contingent promises and those who are relying on those same promises should look forward to the clarity this case may bring to this area of law in Canada.  This blog will be updated once the decision is issued.   

    Have an estate dispute?  The lawyers at League and Williams are here to help and will fight for your fair share of an estate.  We serve clients across British Columbia, offer free consultations and do not get paid until you do.  We may be contacted at 250-888-0002 or via email at info@leaguelaw.com. If you have suffered an unfair disinheritance, do not delay, it could cost you your fair share of an estate. 

  • Parents Beware: ICBC child injury claim – the need to knows

    Parents Beware: ICBC child injury claim – the need to knows

    There is a common mistake made by people when dealing with an ICBC child injury claim.  The mistake is about when a minor, that is someone under the age of 19, loses the right to claim for ICBC benefits after an accident.  Many people know that after a car accident, ICBC must provide rehabilitation benefits and a partial wage loss replacement.  These benefits include payment of some chiropractic and physiotherapy treatment, and wage loss benefits of up to $1,200 per month.  These are called “no fault” benefits because a person is entitled to them even if they were at fault for the accident.

    Many people also know that if they have been injured as a result of someone else’s fault, that they have two years to start a court action to preserve their right to be compensated for the injuries.  This is called a limitation period.  In BC, the Limitation Act provides, in simple terms, that a person has two years from the day they discover they have been harmed to start that court action.  In most accident cases, like car accidents, this is from the date of the accident because that is the date it is obvious you have been injured

    Importantly, the Limitation Act also provides that for a minor, again in BC that is someone under the age of 19, their limitation period of two years does not start to run until their 19th birthday.  This is because a minor is under what is is called a “legal disability” and their right to sue cannot be prejudiced while they are a minor.

    Many people do not know, however, that a two year limitation period also applies in respect of the right to make ICBC pay for no fault benefits.  That is, if ICBC has refused to pay for no fault benefits, perhaps because they believed the injuries were not caused by the car accident but rather from some other event, then there is only two years from the date of the accident or the last day ICBC paid benefits, to preserve the limitation period by filing court documents.

    Importantly, when it comes to an ICBC child injury claim, the same rule that the running of a minor’s right to sue for compensation doesn’t start to run until their 19th birthday, does not apply to no fault benefits.  In other words, a minor, even someone who is 10 years old for example, must sue ICBC within two years of the accident date or the last day they received no fault benefits, or their right to those benefits will be forever lost.

    Parents of children injured in an motor vehicle accident should bear this in mind when making their ICBC child injury claim, because parents are responsible to protect the legal rights of their children.

    I hope you have learned something about the law from this blog.

    Please feel free to like us on Facebook, follow us on Twitter, and subscribe to our YouTube channel to receive notice of our future weekly video blogs on the law.  If you, or someone you care about has been involved in a car accident, contact us at 250-888-0002 or via email at info@leaguelaw.com for a free consult. We do not get paid until you do and are BC injury law experts.

  • Red Flags with Victoria’s Protected Bike Lanes and Green Boxes

    Red Flags with Victoria’s Protected Bike Lanes and Green Boxes

    Protected Bike Lanes on Pandora Open to Mixed Reviews

    On Monday, May 1, 2017 the Pandora St. protected bike lanes officially opened to the public. The intent of this two-lane track that runs from Wharf St. to Cook St. is to separate bike traffic from car traffic and make cycling more efficient and safer.  While the intention is honourable, the immediate result has been confusion and many near-misses between motorists, pedestrians and cyclists.  Road (and crosswalk) users will have to adapt to significant changes in their usual behavior at intersections along Pandora.  However, it should be noted, where this kind of bike lane has been implemented elsewhere, improvements in safety have been realized.

    Motorists, Cyclists and Pedestrians Face a Learning Curve

    Motorists will no longer be able to make right turns on red lights at intersections, and must stop behind the green bike boxes away from the intersection.  Cyclists have to maneuver to enter and exit the bike lanes through “green boxes” that are far from intuitive and involve turning right to go left, and vice versa. The City has had to produce a four-minute video to explain how the protected bike lane works – it is doubtful many cyclists, motorists or pedestrians will absorb the video.  The City has stationed employees at the intersections to explain to road users how to navigate the new “facilities” – it is unclear how long these employees will be stationed there as the tourist season progresses.  The forecast calls for confusion and flared tempers, and sadly a significant chance of serious injuries as people adjust to this new norm.

    No Requirement to Use the Bike Lane Provided

    While many motorists are glad to see the dedicated bike lanes, some are not.  Even some cyclists ask if they have to use the bike lanes, many of them nervous that motorists and pedestrians won’t know how to behave around the bicycles that enter and leave the green boxes in a bizarre fashion that involves turning their bikes 180 degrees. However, whether people like it or not, the law does not require cyclists to use the protected bike lanes simply because they are available. If a cyclist is injured by a vehicle outside of the protected bike lane, the court will not find the cyclist negligent for not using the bike lane just because it was there, provided the cyclist’s actions were not otherwise the cause of the accident.

    If Protected Bike Lanes Prove Hazardous, Can the City be Held Liable?

    Importantly, BC courts have said: “a municipality has a duty to maintain roads in a reasonably safe condition. The duty extends to taking reasonable steps to prevent injury to users of the roads caused by hazardous conditions… such as those arising from the design or configuration of the road.”  The point to be drawn from the foregoing is that a municipality’s duty extends to maintaining and configuring its roads, such that they are safe for use by someone using ordinary care.

    How cyclists are required to navigate Victoria’s new bike lanes, as well as how motorists and pedestrians are expected to behave around them, is now far from ordinary for the typical road user (watch the video and you will see).  This means that the City may find that a cyclist, pedestrian or motorist is injured because of a confusing or otherwise unsafe road design that a person exercising ordinary care would not expect, may hold the City responsible for their injuries. Such a claim does not involve ICBC paying for the City’s negligence.

    Many people do not know that there is a very short time limit for notifying the City that its design or implementation of the new bike lane has caused someone harm. The BC Local Government Act states that a local government “is in no case liable for damages unless notice in writing, setting out the time, place and manner in which the damage has been sustained, is delivered to the municipality… within 2 months from the date on which the damage was sustained.”  This means that if the City is not notified of an injury within 60 days of the accident, the City will bear no responsibility regardless of how severe the injuries are.  Hopefully no injuries arise as tourists and locals learn how to use the new protected bike lanes, but if they are, they should not overlook the requirement to give notice to the City within the 60 days required by the Local Government Act.

    Darren Williams is the principal lawyer with League and Williams and leads the personal injury area of practice of the firm.  If you or a loved one has been injured in an accident, we would like to help you recover.  League and Williams offers free consultations, does not get paid until you do and is focused on ensuring that you recover to your fullest potential.  League and Williams is headquartered in Victoria, BC with satellite offices in Duncan, Nanaimo and Campbell River.  We may be contacted via email at info@leaguelaw.com or phone at 250-888-0002.

  • Crosswalk, or Not? That is the Question

    Crosswalk, or Not? That is the Question

    League and Williams Lawyers recently ran a contest on our Facebook page, asking whether or not the picture was of a crosswalk – with those who answered and liked our page being entered into a draw for a high-definition dash camera.

    Crosswalk or not? That is the Question
    Is this a crosswalk?

    There was passionate interest and response to our post.  Yes!  No!  What!?  Revealing a common misunderstanding about the BC Motor Vehicle Act (“MVA”) and how judges interpret it.

    A large share of people would say “no”, this isn’t a crosswalk because there are no lines on the road or pedestrian signals.  On that basis alone, they would be incorrect – sorry.  The MVA provides that the rights of a pedestrian in a “crosswalk” includes an “unmarked crosswalk”.  An “unmarked crosswalk” is the portion of an intersection (including a T-intersection like in the photo) within the extension of the lines of sidewalks on one or more sides of an intersection; in other words, draw a line across the street from the end of the sidewalk.  So, even if there are no lines on the road (or lights), the area between the ends of the extensions of a sidewalk, even if unmarked, is a crosswalk!

    But wait!  Maybe the “no’s” in this case aren’t wrong after all?!  The photo does not show that the sidewalk approaching from the right actually reaches the curb – the sidewalk stops at the intersection of the other crosswalk, leaving a grassy area between the end of the sidewalk and the road (a boulevard).  Importantly, one BC Court has said if such a grassy area was maintained by the local government and was meant to be walked on, then it doesn’t matter that the sidewalk didn’t actually join with the road – it was still an “improvement for pedestrians” (and therefore a sidewalk that ended in an unmarked crosswalk)!  The loser of that decision (the driver) appealed to BC’s highest court, which disagreed with the lower court and said, in that specific case, that because there was no sidewalk at all, and the city made no effort to maintain the boulevard, that the area was not “improved for pedestrians” and therefore not part of the “sidewalk” that met the road – the result was the injured child crossing the street was not in an unmarked crosswalk.  Basically, it boiled down to whether the city maintained the small area between the adjacent house and the street!

    In the case of this picture, the court would likely find that “yes” this is an unmarked “crosswalk” because the grassy area between the sidewalk and the road is clearly improved (leveled, seeded and mowed), despite there being no extension of the sidewalk to the curb, a let-down, paint on the road, or other signals.

    So what!?  If a pedestrian is crossing in an “unmarked crosswalk” (like this one) from the side of the street your car is approaching on, then they have the right of way, unless they step into the street in a manner that gives you no practicable means of stopping.  In other words, pedestrians cannot rely on an unmarked crosswalk to surprise drivers.  That said, the law requires drivers approach all intersections, especially intersections like this one in a residential area where children and other pedestrians are common, in a cautious manner (i.e. expecting someone might step out).

    Sadly, some drivers approach pedestrians in unmarked crosswalks aggressively and challenge them for “jay-walking”, when they in fact have the right of way.  Don’t be that driver.  Approach every intersection with caution and humility, knowing your car can kill.

    Thank you for caring about this issue.  Please answer our future road safety quizzes and share them with friends to help save lives (and insurance premiums).

    Because of the difficulty of this question, everyone who liked our page (not just commented) was entered to win…. and the winner is… Joe Battler!  Congratulations Joe!

    If you have a question about this topic or another legal issue, contact us for a legal consultation.  Reach us at 250-888-0002, or via email at info@leaguelaw.com.