League and Williams Lawyers

Author: Darren Williams

Slow Down and Move Over, It’s BC Law (video blog)

Slow down and move over – It’s a matter of safety

Despite slow down and move over being the law since January 2015, many people still forget that the BC Motor Vehicle Act requires people approaching any official vehicle parked on the side of the road to slow down and, if safe to do so, move into a lane away from the official vehicle. This law is important because motorists often find themselves approaching official vehicles parked on the side of the road, and even split second inattention when passing a vehicle closely, can lead to tragic consequences including serious injury and death.

Indeed, in the last 10 years, more than 250 people working on the side of the road, including police officers and paramedics, have been struck while helping others and more than a dozen have lost their lives as a result. So, I would like to help clear up some common points of misunderstanding about this law.

When does the slow down and move over apply?

First, the slow down and move over law applies to all “official vehicles”, not just police, fire, and ambulance. Official vehicles include tow trucks, highway and municipal maintenance trucks, Commercial Vehicle Safety Enforcement vehicles, park ranger and conservation officer vehicles, utility vehicles, land surveyors, animal control vehicles and garbage trucks. As a rule, when you see a blue, red, or even a yellow flashing light, you should assume that vehicle is an official vehicle and the slow down and move over law applies.

What does slow down and move over mean?

The law requires people to slow down, and also move over if safe to do so. These requirements apply particularly to those people approaching in the lane that is closest to where the official vehicle is parked. However, it also applies to vehicles traveling on the side of the road opposite to where the official vehicle is parked, if there is no median in the middle of the road, and if the side of the road closest to where the official vehicle is parked only has one lane.

Also, importantly, the requirement to slow down is that if the speed limit in the area is 80km/h or above, such as 110km/h, you must slow down to below 70km/h, and if the speed limit is below 80km/h, you must slow down to at least 40km/h. This is often referred to as the 70/40 rule.

Lastly, the requirement to move over applies only if it is “safe to do so”. For example, when you’re traveling in a lane closest to the official vehicle and there is a second lane going in the same direction, you must pull into that inside lane unless it is unsafe to do so. What is safe, will obviously depend on the specific circumstances of each case. For example, there might be a car next to you in that inside lane, but that does not necessarily make it unsafe to move over. It is likely appropriate to slow down to allow the car next to you to pass to create room for you to move over to the inside lane.

Also, if there are only two lanes in the roadway, both going in opposite directions, you must pull into the oncoming lane of traffic if it is safe to do so, in other words, if there are no oncoming cars.

What are the consequences for not slowing down and moving over?

I’ve seen numerous people been ticketed for failing to comply with the slow down and move over law. Many of them caught on dash cameras. The resulting fine is $173, and importantly there are three driver penalty points assigned to your license. You may know that if you earn more than 3 points in one 12-month period, ICBC will force you to pay a driver penalty premium. This premium is in addition to any other ICBC premiums you might pay, and can be collected from you even if you don’t insure a vehicle with ICBC. For example, a person who is given 6 driver penalty points in a 12-month period will pay an additional $300 in penalty premium, and a person who earns 10 driver penalty points, will pay an additional $905 in penalty premium that year.

The financial consequences aside, clearly slowing down and moving over is the right move.

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.

Darren Williams is the principal lawyer at League and Williams Lawyers where he leads the injury law practice. He has more than 16 years of experience working in BC injury law and has the knowledge and experience to get results. League and Williams Lawyers offers free consultations and may be contacted at 250-888-0002 in Victoria, 250-746-0002 in Duncan, 250-591-1056 in Nanaimo and 250-914-4529 in Campbell River or via email info@leaguelaw.com.

March 29, 2017
Hire a Lawyer: Protect Your Extended Health Benefits from MVA Injury Treatment Costs

After the accident who pays for treatment?

Some people are fortunate to have medical benefit plans provided by their employers or unions that cover things like prescriptions for drugs and therapy provided by chiropractors, physiotherapists, massage therapy and others. Pacific Blue Cross, Great West Life and Sun Life are common providers in BC. So, if you have been injured in a car accident caused by another person, and ICBC benefits are available to you, it seems odd that you are then required to submit your MVA injury treatment costs claims through your own extended health benefits provider (if you have one). You may be wondering why you are required to submit your medical expenses to your own benefits plan for reimbursement, rather than to ICBC after an accident that wasn’t your fault?

MVA injury treatment costs after an accident can add up

After a car accident you may be prescribed painkillers or muscle relaxants, as well as treatment such as physiotherapy and chiropractic care. You may need crutches or other mobility aids. Then, you are told that you have to submit these expenses to your own benefits provider, rather than submit them to ICBC. This seems unfair to many people because it appears to violate the principle that it should be the other driver, who was at-fault for the accident, and their insurance, that should pay for your injuries and treatments needed to recover, and that these costs should not come from benefits under your own extended health care insurance.

Your own benefits likely have lifetime limits and you want to save those benefits for other medical issues unrelated to the car accident. This might be particularly true if you already have a pre-existing condition, such as diabetes, kidney disease, heart disease or cancer that makes heavy demands on your benefits, or such demands are foreseeable in the future. Why should you have to use those benefits for a car accident that was not your fault, only to risk having inadequate coverage later when you need it for some other reason?

ICBC is a Secondary Insurer in British Columbia

The answer is because under the BC Insurance (Vehicle) Act, ICBC is, what is a called a “secondary insurer”, meaning the accident benefits it provides are payable “second” to any other benefits you have. This is not a policy adopted by ICBC to frustrate people, though it may seem like it, rather, it is a law created by our legislature, so there is little that can realistically be done about it.

Extended health benefit providers can be paid back by ICBC

However, thankfully, this requirement is not as unfair as it seems. This is because almost all benefits providers have the right to collect back from ICBC the amount of benefits they paid to you when you submitted your receipts to them. Technically, this is called subrogation, but really it just means that, although your benefits were depleted by receipts submitted to them for the car accident, the other driver’s insurance has to replenish those benefits at the end of your case.

Without a lawyer, subrogation claims may be overlooked

In other words, in the end, the driver who is at fault for the accident (or rather, his insurer) ends up paying your benefits plan back for the cost of the prescriptions and treatment you submitted to your extended health benefits insurer. One benefit of having a lawyer after a car accident is that it is their job to make sure ICBC reimburses your benefits plan. Without a lawyer, this sometimes gets overlooked, and you end up having no benefits available to you under a plan you paid for, because someone else’s carelessness hurt you. Now that is unfair.

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 have been injured in a car accident in BC – contact the League and Williams team via phone at 250-888-0002 or via email at info@leaguelaw.com – we only work for injured accident victims (not ICBC), offer free consultations, and pay for treatment costs when ICBC won’t.

February 5, 2017
Can adopted children dispute their former parent’s estate?

BC’s laws are favorable to those who dispute wills & estates

Right or wrong, BC remains the most favorable province in all of Canada for those who wish to challenge the fairness of the last will and testament of another via an estate dispute. In previous blogs, we described how BC law allows spouses and children of a deceased to challenge the will if the will does not make “adequate, just and equitable” provision for the support and maintenance of them, even if that spouse or child is financially independent.

Many people disagree with this law, saying a will-maker should have sole and overriding discretion over what to do with their estate, but Canada’s highest court has found BC’s law to be fair. Indeed, if you had been treated unfairly because of your sexual orientation, your gender identity, mental illness, your choice of spouse, or some of the other reasons we see testators cut people out of their will, you might agree the law is fair as well.

There are, however, limits to the law’s ability to change someone’s will, and last week, the BC Supreme Court clarified one of these limits. This clarification relates to whether a child that has been adopted out by a biological parent, can challenge their biological parent’s will.

Adoption changes the right to dispute an estate in BC

In this recent case, the executor of the will, that is the person identified in the will to administer the wishes of the will writer, who is called the testator, applied to the court for an order that a child of the testator, who had been adopted by other parents, did not have standing to challenge the will of their birth parent. The court noted that the BC Adoption Act provides that when an adoption order is made, “the child becomes the child of the adoptive parent”, “the adoptive parent becomes the parent of the child”, and the pre-adoptive parent is no longer a legal parent.

This means the adopted child is no longer a child that can challenge their biological parent’s will.

This make sense because in many adoption situations, once the adoption occurs, or even before the adoption occurs, the adopted child maintains no contact at all with their biological parent. However, there are many cases where a child who is adopted out, particularly when adopted as an infant, re-establishes contact with their biological parent and goes on to have a full, and sometimes financially dependent relationship, with that biological parent.

In those cases, this recent court case would say the adopted child has no claim against the estate of their biological parent, no matter the degree of their relationship or financial dependence.

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 have a legal issue with which we may be of assistance, do not hesitate to contact our office via phone at 250-888-0002 or via email at info@leaguelaw.com.

January 10, 2017
Don’t be Sorry for Saying Sorry – the BC Apology Act

What is an Apology and What is the Apology Act?

Many people know that a simple, sincere apology, can avoid a lot of legal trouble. Whether you might have caused a car accident, said something defamatory, broken a contract, or perhaps even committed a minor criminal offence, an expression of remorse can go a long way in avoiding a dispute and solving problems. That is why the law in BC encourages people to apologize by ensuring that if they do apologize, it cannot be used against them as proof they did something wrong. This BC law is called the Apology Act, and is a very short piece of legislation that very few British Columbians know about.

The Apology Act defines an apology as:

…an expression of sympathy or regret, a statement that one is sorry or any other words or actions indicating contrition or commiseration, whether or not the words or actions admit or imply an admission of fault in connection with the matter to which the words or actions relate.

Legal Consequences of Making an Apology are Limited

The Apology Act states that an apology made by, or on behalf of a person, does not constitute an express or implied admission of fault or liability by that person. Importantly, the law provides an apology cannot be taken into account by any court in determining whether a person is at fault for an event. An apology cannot be used as evidence in court. For example, if you are in a car accident, and you apologize to the other driver, the other driver cannot raise this apology in court as proof you think you might be at fault for the accident.

Some people believe that apologizing for an accident can void their insurance coverage. Generally speaking, insurance policies require people not to prejudice the insurer’s ability to defend them, and if they do, the insurer can avoid providing coverage to that person. The Apology Act however, provides that an apology cannot void insurance coverage.

Many people know that if you are in an accident, you only have two years to file a claim in court to preserve your right to compensation. This is called a limitation period. In some circumstances, that we discuss in previous blogs, the limitation period can be extended beyond two years. However, the Apology Act is clear that an apology does not serve to confirm the basis for bringing a claim, or postpone the running of the two-year limitation period. This means that if someone denies they caused you harm, and then later apologizes for it, your two year limitation period runs from the time they caused you harm, not when they later apologize.

I hope you have learned something 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 have a personal injury, estate dispute or marine law issue – contact us for a free consultation at 250-888-0002 or email us at info@leaguelaw.com.

December 29, 2016
Private Mooring Buoys and Anchorages – How is the Wild West to be Regulated?

In 2015, BC’s highest court confirmed that the constitutional right to secure a vessel by buoy or anchor is limited to a “reasonable time, for a reasonable purpose”. This decision, and the application of the law that will flow from it, is a significant cautionary marker for all those who rely on private anchorage and mooring buoys along the BC coast. In what could easily fill a small book, this article will briefly summarize the issues and interested parties in what is, under the surface, one of the most controversial marine issues on our West Coast of Canada – private moorage.

What makes the issue of anchoring/mooring controversial is that there are two very different ways of viewing the same fundamental right, the right of navigation. On one hand, many vessel owners interpret the right of navigation, and its included right of anchoring/mooring, as a legal basis for storing their vessel at anchor, or on a buoy, for both short and long periods of time. On the other hand, other vessel owners, upland property owners and other concerned parties, view anchoring/mooring to the seabed (or riverbed) as the use of common (public) property that should not be utilized such that it interferes with others’ use of the same resource (the waterway), or endangers life, property or the environment. What makes matters worse is that the law remains less than clear on what reasonable anchoring/mooring is, and who is responsible for regulating it. These issues are best understood by reviewing the following relevant parties: the Federal Crown, the Provincial Crown, local governments, upland property owners and vessel owners.

The Parties: from the Queen to Vessel Owners

Historically, the Federal Crown has been viewed as the de facto regulator of anchoring/mooring because of it exclusive jurisdiction over “navigation and shipping” under Canada’s Constitution. While only partially correct, this view is likely even less correct under evolving law, as discussed below. The Federal Crown (through Transport Canada) partly regulates anchoring/mooring under two primary laws: the Navigation Protection Act (“NPA”), and the Private Buoy Regulations (“PBR”). The PBR applies to all private (non-governmental) buoys placed as aids to navigation (including mooring buoys) except for those used to mark fishing apparatuses, and sets out the shape, colour, size and responsibilities of those placing the private buoy. The PBR does not restrict the location of mooring buoys. The NPA applies to buoys used for moorage, which are defined as a “work” within the NPA, and is meant to ensure the placement of buoys do not interfere with vessel traffic. That said, Transport Canada will rarely respond to complaints about anchoring/mooring unless the vessel or buoy impedes commercial vessel traffic or is a significant risk to general vessel traffic.

The Provincial Crown in BC is an important party to these issues because, since 1871, BC has had ownership of its “inland seas” (Strait of Juan de Fuca, Strait of Georgia, Johnstone Strait and the Queen Charlotte Strait), as well as ownership of the foreshore (area between low and high tide) and bays. While all Canadians can enjoy the public right of navigation through these waters, there are laws related to the trespassing of these lands. For example, under the BC Land Act, it is an offence of trespass to occupy, possess, or use the seabed without lawful authority from the Province. Individuals, including owners of property adjacent to the foreshore, cannot build or construct private moorage facilities on the foreshores or seabed without a lease or specific permission from the Provincial government. Local governments (for example, cities, municipalities, and regional districts) have not historically been party to the issue of regulating anchoring and mooring. This has recently changed, predominantly as local concern over managing abandoned (derelict) or hazardous vessels has increased. BC Courts have ruled that, provided the seabed (lakebed or riverbed) is within the boundaries of the local government, the local government may enact bylaws that limit anchoring and mooring, provided the purpose of the bylaws is to manage land (the seabed and adjacent upland properties) and not manage navigation. Importantly, the restriction to such bylaws is that they cannot interfere with anchoring or mooring for a “reasonable time, for a reasonable purpose”. In 2015, the BC Court of Appeal (in Kelowna v. Newcomb) cited, with approval, an earlier decision of a BC court regarding anchoring:

There is a common law right to navigation which includes the incidental right to anchor… This is not a right to anchor or moor permanently but it must be exercised reasonably as determined by the circumstances at the time of anchoring such as the weather, loading or unloading of the vessel, or the need for repairs to the vessel. The right to anchor therefore contemplates the right to do so for a reasonable time, for a reasonable purpose.

Some local governments have begun attempting to indirectly define what a “reasonable time, for a reasonable purpose” is, by setting limitations on anchoring to, for example, less than 3 consecutive days, or not more than 4 days per month. To date, no BC court cases have considered what is an appropriate limit, and undoubtedly, that limit will depend on the particular watercourse, and what use is made of it by the public.

Upland property owners are also concerned about how the law is evolving. The Provincial Crown generally recognizes an upland property owner’s right to have unobstructed access to deep water from their property, and hence has historically required an upland property owner’s consent before giving a lease or licence over adjacent seabed to a third party. That said, the Provincial Crown does not generally regulate anchoring and mooring of vessels, and does not typically issue lease or licences for anchorage and mooring buoys. As a result, there are many cases where neither the Federal Crown, the Provincial Crown nor a local government regulate anchoring/mooring in an area. Many desirable bays have become congested with vessels whose owners store the vessel for longer than a “reasonable time, for a reasonable purpose,” impeding other’s use of the waterway, including upland property owners.

In closing, while writing this article I came across the following post in a boating blog: “In BC, the government told me they don’t give water lease for private moorings, so anyone is free to use any mooring they please, legally. I certainly do, after giving it a good shot of reverse to check it out”. This post highlights an interesting misunderstanding held by many people, and why the right of anchoring/mooring can at times be a paradox. Firstly, the Province does not issue leases for mooring buoys, but this does not mean that a mooring can be placed on Crown land (seabed) other than for a “reasonable time, for a reasonable purpose” without it being trespass. After all, that anchor or buoy, if left for an unreasonable time or an unreasonable purpose, is utilizing common property and depriving others of such use. Secondly, arguably that mooring buoy is the personal property of an individual, and attaching an unauthorized vessel to it is trespass to that person’s personal property. The paradox is that, at the same time, that buoy may be trespassing on Crown seabed. This begs the question – who is less in the wrong: the person trespassing on another’s buoy, or the owner of the buoy trespassing on public property? These are issues that can only be answered definitively once the courts have considered them.

Darren Williams is the principal lawyer at League and Williams and leads the personal injury, estate dispute and marine law practices of the firm. This article was previously published in the August 2016 edition of Western Mariner. He can be reached for comment at info@leaguelaw.com or 250-888-0002. League and Williams offers free consultations.

December 16, 2016
Wrongful dismissal? Legal Recourse in BC (Video Blog)

Welcome to this week’s blog on the law. This week I will explain why, when you have been fired from your job without good reason, in other words you have suffered wrongful dismissal, you might make a complaint with the BC Employment Standards Branch, or why you might be better off pursuing your claim outside that process.

Notice or Pay in Lieu of Notice Unless there is Just Cause to Terminate

Let’s start with some basic principles. First, an employer may fire an employee for almost any reason, provided they give the employee adequate notice of the termination, and either allow them to work through that notice, or provide them with the pay in lieu of the notice period. In other words, an employer does not have to keep a person employed if they are unhappy with them, but they do have to pay to get rid of them. The exception to this general rule is that an employer may not terminate someone for a reason that is discriminatory. Discriminatory termination is a human rights breach under the BC Human Rights Code. A decision to terminate someone is discriminatory, whether the employer intends it or not, if the decision is based on the race, colour, ancestry, religion, marital status, family status, physical or mental disability, sex, sexual orientation, or gender identity. When an employer fails to provide adequate notice or pay in lieu of notice, and there is not “Just Cause”, the termination is considered to be wrongful dismissal.

We will cover human rights breaches in another blog.

What is “Just Cause” when employment is terminated?

Second, an employer may fire an employee for cause, and avoid giving any notice or paying any severance, if the employee’s conduct is so egregious that the employment relationship cannot continue. This is called termination “for cause”. We will cover what justifies cause for termination in other blogs.

For now, if an employer does not terminate an employee for a reason that amounts to cause, they are responsible to pay the employee the minimum severance required under the BC Employment Standards Act. The Employment Standards Act is a written law, or statute, enacted by the BC government, and is enforced by a government agency called the Employment Standards Branch.

The minimum severance under the Employment Standards Act amounts to one week of wages after three months of service, 2 weeks of wages after 12 months of service, and after three years of service an amount equal to three weeks wages plus an additional week for every year of service after three years, up to a maximum of 8 weeks.

Employment Standards is Not the Only Option for Recourse from Wrongful Dismissal

Note that I said the Employment Standards Branch cannot award more than 8 weeks of severance as a maximum. Many employees who face wrongful dismissal jump to making a claim under employment standards thinking it is their only recourse. This is not correct. Outside of the employment standards process, the employee can make a demand for severance based on common law. Common law does not come from a piece of legislation, like the Employment Standards Act, rather, common law comes from the decisions of judges in courtrooms that have developed over time.

The common law on wrongful dismissal is generally much more generous than the law under the Employment Standards Act. As a general rule of thumb, an employee may receive about a month of severance for every year of service with an employer, which is three to four times that provided under the Employment Standards Act.

The amount of severance paid under common law will vary from case to case, and will depends on a variety of factors, such as the age of the employee, their experience and qualifications, their seniority and generally how difficult it will be for the employee to find a similar job. Many employees can make a demand for common law severance and negotiate that amount with the employer without the help of a lawyer. If the negotiation is not successful, the employee can file a claim in BC small claims court, and seek up to $25,000 of severance in that court. Larger claims must be heard in the BC Supreme Court.

Larger Wrongful Dismissal Claims Often Benefit from Legal Guidance

In more serious cases, where the length of employment has been longer, such as more than 4 or 5 years, the employee might seek the help of a lawyer to pursue their claim. Larger severance claims often result in the employer alleging they had cause to fire an employee, even if they didn’t, just so they can avoid paying the money. An employer will often put in issue the employee’s competence or honesty, and having an objective advocate to combat these allegations is important and will remove much of the stress from the employee.

I hope you have learned something 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 have employment issues you would like to discuss, League and Williams offers free consultations and may be contacted at either 250-888-0002 or via email at info@leaguelaw.com.

November 21, 2016
Social Host Liability & Holiday Party Law (Video Blog)
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 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.

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 and 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 at 250-888-0002 or via email at info@leaguelaw.com.
November 15, 2016
Disinherited? Reasons a BC estate can or should be challenged? (Video Blog)
Good reasons for the disinherited to challenge a will

In a previous blog we discussed who had standing to challenge an unfair will in British Columbia. In this week’s blog I want to outline the general reasons that a person who is disinherited by a will might be able to successfully challenge it in British Columbia.

Before diving into that topic, however, I want to address a comment I hear from time to time, and that is why should someone who is disinherited be able to challenge a will at all? That is, why can’t a testator, that is a person whose will it is, decide, and have the final say no matter what, on what happens with their money after they are dead. It is their money after all, right? There are several good answers to this question.

One reason that is often given is that when a person does not provide adequate support for their spouse or children by disinheriting them, government services, such as disability or welfare, must support that person, and this shifts the burden of financial support from the testator to the tax-payer, which is all of us, because we are the ones who fund those services.

Not everyone may agree with that reason, but if you watch some of our other blogs and understand some of the bizarre reasons people are disinheriting their family members, you may start to appreciate that perspective.

Now, on with the reasons a person who is disinherited may challenge a will. Each of these reasons will be addressed in detail in our future blogs.

Wills that are not valid can be challenged

The first reason is that the will is not a valid will at all. This can be the result of several reasons:
- The person writing the will may have been ill or otherwise lack the capacity to understand what they were doing when the will was written and signed.
- The testator may have had the capacity to understand what they were doing, but have been grossly mistaken about what they were doing in their will.
- The testator may have been under strong, or undue, influence by another person, including another family member or other beneficiary to write the will in a certain way.
- Lastly, the will may not have been properly drafted and signed. There are formal requirements for drafting and signing wills that are discussed in another one of our blogs, which must be followed for the will to be valid. Courts in British Columbia do have some power to correct wills that are not properly drafted and signed, but this power is not limitless.
Importantly, anyone who is in a prior will of the testator, or who would be entitled to a portion of the estate if the will is not valid, can challenge the last will of someone on these grounds.

Unfair wills may also be challenged by the disinherited

The second reason a will can be challenged in British Columbia is that a valid will may be unfair to a spouse or a child, even a financially independent adult child. By unfair I mean the testator does not provide adequately for the proper maintenance and support of that person.

We address in detail what is “adequate provision for the support and maintenance” of a spouse of child in another blog, but essentially the law looks to whether the testator has a legal or moral obligation, or both, to provide financial support, and if the will does not do so, the court can change the will.

Indeed, the court’s power to change a will in British Columbia is broad and the testator sometimes does not have the last say. I hope you have learned something 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.

League and Williams is a Victoria, BC based law firm with expertise in injury law, estate disputes and marine law and may be reached via email at info@leaguelaw.com or phone at 250-888-0002. If you are injured and would like a free consult, give us a call for a free consult. We are here to help injured parties get the fair compensation that they are entitled to.
November 10, 2016
ICBC Claims: Accident Benefits, Does it Matter Who is at Fault?

Most people’s livelihoods depend on their ability to get from home to the workplace, and back again, and many people are affected by accidents that occur while on a roadway, either as a motorist, a cyclist or a pedestrian. In this blog post I will provide an overview of the accident benefits available to people injured in a car accident in BC through ICBC claims.

ICBC Claims Accident Benefits – Does it Matter Who is at Fault?

The simplest way to explain how motor vehicle ICBC claims are handled is to divide them into two categories: (1) accidents that you are at fault for, and (2) accidents that someone else is at fault for. When you are injured in a vehicle accident that is your own fault, the Insurance (Vehicle) Act requires ICBC to pay you minimum mandatory benefits regardless of your fault for the accident. These are called “no-fault benefits”. On the other hand, when you are injured and someone else is at fault (even partly) you can claim no-fault benefits, but importantly, you can ALSO claim under the other driver’s insurance policy for any compensation that is not provided by your own “no fault benefits”. These ICBC claims against the other driver are called “tort claims”. This is an important difference because the benefits provided by your own no-fault insurance (as described below) are minimal compared to the benefits you are entitled to from the insurance policy of the other driver by making a tort claim.

No-Fault Benefits in BC

Your No-Fault Benefits: No-fault benefits are available to you even if you cause an accident, for example, you slide off the road and crash into a tree and break your leg, or you rear-end someone and hurt your neck. No-fault benefits are provided to anyone who is injured as a result of the “operation of a motor vehicle” in BC, 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 you must either have a B.C. driver’s licence or live with someone who does. At law, ICBC must provide up to $150,000 in no-fault benefits. Sounds good, right? Unfortunately, no-fault benefits are more limited than they sound and are restricted to two primary forms: temporary wage loss supplements, and partial rehabilitation benefits.

If your injuries cause you to lose time at work, no-fault benefits only pay up to (a maximum of) $300 per week of lost wages. 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 your pre-accident income. For example, if you were making $1,200 per week prior to the accident, and after the accident your short term disability was paying you $800 per week, ICBC would only pay you 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 $150,000 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

Your Tort Claim: a “tort claim”, refers to the ability to sue someone for your losses caused by their negligence. In a motor vehicle accident caused by another driver, or at least partly caused by another driver, you have a tort claim against them (which their insurance will cover) to the extent they are at fault. The amount of compensation available to you will depend on the extent of your injuries, what effect they have on your 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, I recommend carrying at least $2,000,000 in insurance for the additional cost of about $75 per year.

Importantly, in a tort claim the types of compensation you can claim are not limited by the same categories as under your own no-fault benefits. Remember, you are suing the other driver for their negligence (which is why they have insurance in the first place), and you are entitled to be put in the same financial position you would have been in had the other person not injured you. As a result, you are entitled to payment for all of your lost wages, your medical expenses, your future loss of earnings due to disability, as well as the pain and suffering for the general effect that the injuries have on your 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.

Darren Williams is the Principal Lawyer of League and Williams (LaW) and has handled over 1,200 motor vehicle claims for injured parties in 15 years. He is a lawyer specializing in injury law, estate disputes and marine law at League Law Corp, in Victoria, B.C., Canada and can be reached for comment at info@leagueandwilliams.com or 250-888-0002.

November 4, 2016
Criminal Liability of Employers for Workplace Negligence

Criminal Liability of Employers, the Case of Stave Lake Quarries

Stave Lake Quarries in 2015 was the first employer in B.C. to face criminal liability as it was charged with criminal negligence causing the death of an employee. This article should be of interest to employers and the families of deceased employees because the same legal principles apply across all industries.

Briefly, the facts of the case are that 22-year-old, Kelsey Anne Christian, started work at the Stave Lake Quarries in Mission B.C. in 2007 and was killed on her second day on the job when the truck she was operating flipped over, pinning her underneath. A government investigation concluded that she had not been provided adequate training on the operation of the quarry truck before she was required to operate it. In April 2015, eight years after the accident, the employer and two other employees were charged with criminal negligence.

This is not the first case where an employee has been charged with criminal negligence causing death. Readers will recall the navigation officer of the Queen of the North was convicted of two charges of criminal negligence, causing death and sentencing to four years in prison. It is, however, the first time an employer in B.C. has faced criminal liability and has been charged under the criminal negligence sections of the Criminal Code.

(Mis)Understanding the Law

In reading news articles about this tragic story, my attention was caught by a disturbing quote that the President of the B.C. Federation of Labour made in response to the charges being laid: “we have long held the view that employers who are negligent and cause serious injury or death of workers should be criminally prosecuted” [source: CBC]. My first impression was that the President had been misquoted, but the article went on to provide a further quote: “in every one of those cases, we have said there should be charges and if indeed employers are found to be negligent – then they should face serious penalties including jail time”.

The reason these quotes should be of concern to employers is that they demonstrate a serious, but common, misunderstanding of the law of criminal negligence. Negligence by an employer causing the injury of an employee is a very common occurrence, indeed it happens every day in B.C. An employer may forget to change a light bulb and a worker falls down a dark stair case. An employer delays in replacing a broken wooden ladder, or a malfunctioning power tool, and a worker is injured using it. These are common occurrences of negligence by an employer. One of the fundamental purposes of workers compensation (WorkSafeBC) is to protect employers from injuries (and financial loss) suffered by their employees because of the employer’s negligence. Distinguishing then between common negligence and criminal negligence is of utmost importance.

Common/Simple Negligence versus Criminal Negligence

Common negligence is simply the failure to take reasonably adequate care to prevent harm to others that is foreseeable. In industrial settings, employees and employers cannot be sued by an injured worker for common negligence because the workers compensation system prohibits such lawsuits; in exchange for giving up this right to sue, the injured worker has a right to workers compensation benefits even if they are at fault for their own injuries.

Just as an employer cannot be sued civilly by an employee for the employer’s common negligence, an employer cannot be liable for criminal charges for common negligence either. The Federation of Labour’s statement that “employers who are negligent and cause serious injury or death of workers should be criminally prosecuted” is ironically a dangerous statement as it would mean almost every employer in the province would at some time be exposed to a criminal prosecution. Practically speaking, the government regulation of employer’s negligence is managed by the workplace safety arm of WorkSafeBC, which can levy substantial fines against employers for maintaining unsafe work places.

Criminal negligence on the other hand, the form of negligence alleged in the death of Ms. Christian, is a much more serious form of negligence, and hence the penal sanctions associated with a conviction for criminal negligence. If convicted of criminal negligence, for example, a person can be liable to imprisonment for life. The average sentencing for criminal negligence causing death currently appears to be in the range of 2 to 4 years.

The Legal Test for Criminal Negligence

There have been many court cases that discuss the definition of criminal negligence but it can be concisely defined as having two requirements: (1) a substantial departure from reasonable care and (2) a wanton or reckless disregard for the safety of others.

A substantial departure from ordinary care is significantly different than the degree of error required to find somebody liable for common negligence. A person can be liable for common negligence for even the slightest departure from what a reasonably prudent person would do in similar circumstances. Criminal negligence on the other hand, and its requirement that there be a substantial departure, means the court will look to not only what a reasonably prudent person would do, but also assume a significant margin of error in their judgment. Only if a person’s conduct falls well outside of that ordinary margin of error has the person committed a substantial departure. It can be a difficult concept to understand until it is applied to the facts of the case, and every case is different. In the case of Ms. Christian’s death, the court will need to be convinced that what Ms. Christian’s employer did or failed to do was far removed from what a reasonably prudent employer would have done, and even then, the court will have to be satisfied the second requirement for criminal negligence is also met.

The second requirement for criminal negligence is a wanton or reckless disregard for the safety of others. Wanton or reckless disregard means that a person contemplated the risk of their acts or omissions harming someone and chose to disregard that risk. It is the “yeah, that could happen, but I don’t care” mentality. One reason that criminal negligence charges are rarely brought at all, and particularly against employers, is because this level of disregard for safety is fortunately rare, but more importantly, difficult to prove in court. Although the accused may deny ever considering the risk (and hence cannot be found to have considered it and disregarded it), the court will look at the surrounding facts of the case and conclude whether a reasonable person should have considered the risk and therefore whether the accused should have considered the risk (whether he denies doing so or not). For example, in the Queen of the North sinking, the navigating officer maintained he did not consider striking Gil Island was a risk. Ultimately, the court did not accept that evidence, and found that either he must have considered the risk but chose to disregard it, or that he didn’t consider it when he clearly should have.

In closing, the test for criminal negligence causing injury or death is a high one and employers should not be concerned that they will face criminal liability for simple negligence causing injury to their employees. That said, employers can be heavily sanctioned by authorities such as WorkSafeBC for simple negligence, and so should always maintain safe workplace practices.

Darren Williams is the Principal Lawyer of League and Williams Law Corporation in Victoria B.C. where he focuses his practices on the areas of personal injury law, marine la and estate disputes. He can be reached for question or comment locally 250-888-0002 or at info@leaguelaw.com. This article was originally published in the June 2015 edition of Western Mariner magazine.

October 28, 2016