Call to increase maximum dollar award to $50,000

I caught a piece of a CBC Radio news story the other day.  After purchasing a home, a couple learned that there had been problems that would require repairs totaling approximately $50,000.

The focus of the news story seemed to be the inadequacy of Property Condition Disclosure Statements in protecting purchasers. That may be an important issue, but I saw an issue more important to me, which is about access to justice.

The purchasers seemed to think that they had a “slam-dunk” case against the folks who sold the house and the real estate agents involved, all of whom they believed were aware of and failed to disclose the problems with the home.

They expressed frustration, though, with estimates they had gotten from lawyers that it would cost $10-$20,000 to prosecute the matter in court. When compared to a potentially $50,000 case, a $10-$20,000 legal expense to achieve justice seems disproportionate.

One “fix” would be for lawyers to stop charging so darned much. Of course, that’s not going to happen.

The other “fix” is to eliminate lawyers altogether.

That’s exactly what Small Claims Court is all about. British Columbia’s Small Claims system is specifically designed to give access to justice without the need for a lawyer.

Every system of justice has its limitations, but I am impressed as all heck with our Small Claims system.

Commencing a Small Claims lawsuit is as easy as filling in the blanks of a one-page form. The blanks have such complicated headings as “What Happened” and “How Much”.

There are easy to understand pamphlets explaining straightforward and accessible procedures.

There are two hearings. The first is an opportunity to resolve the legal dispute at mini-mediation presided over by a Provincial Court Judge. If a settlement is not reached, the next and final hearing is the trial.

The trial can be as simple as stepping into the witness box and telling your story, armed with whatever documentation might be relevant to your claim.

If one of the parties chooses to hire a lawyer, the judge is likely to even the playing field by helping the unrepresented party along to the extent possible.

Not only do you avoid the horrendous expense of legal fees to prosecute your case, you also avoid the risk of paying the opposing parties legal fees if you are unsuccessful because legal fees are not claimable in Small Claims lawsuits.

Unfortunately, the dissatisfied purchasers in the CBC news story cannot currently prosecute their $50,000 case in Small Claims.

In 2005, the maximum dollar award in Small Claims was increased from $10,000-$25,000. That increase reflected the reality that it made no sense to pay a lawyer to prosecute a claim up to $25,000.

At the time, it was contemplated that the upper limit ought to be increased to $50,000. I think the time has come to do just that, so that those like the dissatisfied home purchasers can have affordable access to justice.

While I’m at it, I should mention another unfortunate limitation to Small Claims.

Our current legislation requires builders liens to be enforced in Supreme Court. The legislation needs to change to allow those liens to be prosecuted in Small Claims. As it stands, a construction contractor has to hire a lawyer to enforce a builders lien in Supreme Court even if the claim is as low as two or three thousand dollars.

And to tie this into the subject matter of my column, personal injury claims can be pursued in Small Claims as well.  If there is enough interest, I would be happy to offer free seminars to teach injured victims how to best prosecute a case without a lawyer in Small Claims.

Tell that to the insurance adjuster who low-balls you.

Contact your local MLA and ask that he or she support these and other initiatives that will increase access to justice in this province.

Published November 10, 2011 in the Kelowna Capital News

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Criticism for accident policy

If ever there was an unfairness screaming out to be exposed, it’s the “Low Velocity Impact” policy employed by British Columbia’s monopoly auto insurer.

To understand how ridiculous it is, you need to understand that if you are injured in a crash that is not your fault, you have two sets of rights.

One set of rights is owed to you by ICBC under a legislated policy of insurance available to most British Columbians whether or not you are at fault in a crash.  This policy entitles you to a basic set of medical and disability benefits that arise out of Part 7 of the Insurance (Vehicle) Act.  I will refer to those rights as “Part 7” rights.

When ICBC is administering those Part 7 rights, ICBC is acting as your insurance company and, as such, owes you a legal duty to treat you fairly.

The other set of rights is against the driver that wasn’t paying attention and smashed into the back of your car.  Of course, due to the liability insurance monopoly in British Columbia, ICBC is typically that driver’s insurance company as well.  That’s the set of rights that entitles you to full and fair compensation for any losses you suffer arising from a collision, including full income loss, full reimbursement for medical expenses, and compensation for “pain and suffering”.

When negotiating that set of rights with you, ICBC’s duty is to that other driver, and doesn’t owe you any duty to treat you fairly.

The clearest distinction between how those two sets of rights are administered is when there is a small amount of damage to vehicle bumpers.

We are all different.  Some of us will not be injured at all in a collision that causes minimal damage to the vehicle bumpers.  On the other end of the spectrum, some of us, because of our particular physiology and particular dynamics of the collision, will end up suffering from a whiplash injury that will never fully resolve.

It doesn’t help that vehicle bumpers are designed to withstand a certain velocity impact without crumpling.  That design saves the insurance industry a lot of money in vehicle repair expense because the forces involved in the collision are not absorbed by crumpling steel.  Instead, the car has a bounce effect that delivers even greater forces to the vehicle occupants.

Let’s say you are sitting at a red light and your vehicle is rear-ended.  You suffer injury and are referred by your doctor to expensive therapies.  Your doctor tells you to take time off work to assist in your recovery.

Nobody, not even the insurance company, disputes that you have been injured.  The insurance adjuster specifically tells you that he believes that you are injured.

In fact, you are given full access to the Part 7 benefits I described  (a portion of treatment expense and income loss).  Remember, when administering those benefits the insurance company owes you a duty of good faith.

When you ask for fair compensation for the rest of your losses, though, the insurance company outright denies your claim.   Why?  The answer is the Low Velocity Impact policy.  There is not enough damage to the bumpers.

What?  You didn’t hurt before the collision and now you hurt.  Your doctor has diagnosed a whiplash injury and has referred you to therapy.  You are spending a bunch of money on the prescribed therapy.  You have been told to take some time off of work to assist with your recovery.  The insurance adjuster specifically agrees and acknowledges that you were injured.

But your claim for fair compensation is outright denied.

Does this sound just a little bit wrong?

The only way to beat the Low Velocity Impact policy and achieve justice, to achieve fair compensation for your losses, is to pursue a lawsuit.  The insurance adjuster might lie to you and say that 9 out of 10 of those lawsuits are thrown out of court.

Don’t believe it.

A judge is likely to believe the truth just like the insurance adjuster does.  They want you to just give up and go away.  In fact, many of these cases settle before ever getting to Court.

Published November 3, 2011 in the Kelowna Capital News

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Dealing with risks to our children

Our children are exposed to all sorts of risks of harm.

We do our best protect them from the various risks they could fall victim to.

The greater our awareness of a risk, the greater the precautions we take, or insist that our children take, to avoid or minimize that risk.

Our children’s own awareness of risks is also important, though they are less able to appreciate how serious consequences can be.

We must drill into their heads that they must look both ways before crossing the street, for example, because they simply do not appreciate how dangerous it is to dart out without checking for traffic.

We see all sorts of public awareness campaigns aimed at raising awareness for this or that risk: because increased awareness leads to increased precautions and, in the case of safety risks, fewer injuries.

Some risks can be eliminated.  Your child will never get hurt on a trampoline if you ensure your child is never allowed to play on one, for example.

Of course, there was a time when the risk of backyard trampolines was unknown to parents.  It was not until news broke of children suffering injuries on trampolines that there was an awareness of that risk.

Other risks cannot be eliminated.  The best we can do for those risks is to minimize them.

One risk that we wish like heck we could eliminate for our children is the risk of sexual abuse.  It’s up to us as parents to minimize this risk by keeping our children away from potential offenders.

To a large extent, we rely on others to ensure our children do not become sexual prey.

For example, we rely on the school system to ensure teachers are carefully screened and to ensure that policies and procedures are in place to eliminate the possibility that our children could fall prey to a sexually deviant teacher who has slipped through the screening process.

Our level of reliance on the school system is built on a trust that the screenings, policies and procedures are effective at protecting our children.

If we had a clue that the system was failing to protect our children, we would take immediate action to either fix the broken system or remove our children altogether from that system by, perhaps, home schooling them.

Keep us in the dark and we are powerless to protect our children.

In my opinion, children’s safety is important enough that our laws should promote full disclosure of risks of harm so that we are best equipped as parents, and as a society, to take steps to eliminate or keep those risks to a minimum.

The key mechanism for identifying and addressing harms to children in our society is by way of a lawsuit.  If there is a lawsuit brought to recover compensation for harms and losses to children, the law should prohibit the alleged wrong doer from doing just the opposite of full disclosure and imposing confidentiality terms on settlements.

In my view, the laws should apply not only to child sexual abuse risks, but also to any other risk to children’s safety.

If a child suffers harms and losses, whether through sexual predation, a dangerous toy, medical malpractice or any other cause, and a lawsuit is brought to recover compensation for those harms and losses, imposed confidentiality over the settled results of the lawsuit should not be permitted.

As a parent, I want to know as much as possible about the risks of harm to my children so that I have the best chance to protect them.  As a member of society, I want there to be general awareness about those risks so that we can take collective steps to protect the most vulnerable among us.

Published October 27, 2011 in the Kelowna Capital News

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Lawsuit only voice for judiciary

A lawsuit brought by the Provincial Court Judge’s Association of British Columbia made headlines last week: “B.C. Provincial Court Judges Sue for a Pay Raise”.

It was a hot button headline.

The proposed pay raise, from massive ($231,138) to more massive ($245,526), is beyond most working people’s comprehension.   Particularly in the context of public sector union contracts being negotiated with zero increases, this proposal appears obscene.

There was some qualifying detail given in the news reports, but judging from comments electronically posted by readers on the internet, very few saw past the headline.

I read through comment after comment, slamming judges for their perceived greed.  The odd comment in support received overwhelming thumbs down in the court of public opinion.

I took the time to learn the facts behind the headline.  I invite you to do the same by checking out the 2010 Judges Compensation Commission report (the “Commission Report”) and the Provincial Government’s response (the “Government Response”), which can be found at http://www.ag.gov.bc.ca/judicial-compensation/index.htm.

One key fact is that judges are special. They are not government employees.

Quoting from the Government Response:

“It is a fundamental principle of the Canadian constitution that the courts must be independent of government…”.

A 1994 Federal Court of Canada decision is quoted as follows:

“[The] independence of the judiciary is an essential part of the fabric of our free and democratic society.”

The supreme law of Canada states that “financial security” is an essential condition for judicial independence.

The Government Response notes

“…judges’ remuneration…must be established through a process that incorporates an independent, objective and effective judicial compensation commission that reports and makes recommendations on judicial remuneration.”

Unlike unions that negotiate their pay, armed with the threat of striking, the Canadian Constitution prohibits judges from negotiating their pay.

That’s where the 2010 Judges Compensation Commission came in.  The Commission is truly independent, composed of two members of the Provincial Government, two members appointed by the Chief Judge of the Provincial Court, and a fifth member, appointed by the other four, acting as chairperson.  The job of the Commission was to make recommendations on remuneration for Provincial Court Judges for the period April 1, 2011, to March 31, 2014.  A new Commission is appointed every three years.

It wasn’t the Provincial Court Judges who asked the Government for zero pay increase for 2011/2012 and 2012/2013, with a pay increase for 2013/14 of 6% to keep up with the cost of living.  No, it was the independent Commission that made that recommendation.

One of the factors the Commission was required to consider is the financial position of the government of British Columbia.  The Commission’s careful review of our Province’s financial situation led to the recommendation of two years with zero increases, which in the context of inflation is a pay cut.  It was on a projection of a balanced budget in the third year that the cost of living increase was recommended in that year.

Unlike other commission reports that provincial governments sometimes choose to ignore, judicial compensation commission reports cannot be ignored.  The law does not mandate the Government to automatically implement the recommendations either, though.  “…the government retains the power to depart from the recommendations as long as it justifies its decision with rational reasons…”.

The Government rejected the recommendation for the third year pay increase.  Reasons for that rejection were given in the Government Response.

The independent commission process was put in place to arrive at reasonable remuneration for the incredibly important job judges do.  That process is undermined if commission recommendations are unreasonably disregarded.

Judges are not suing for a pay increase.  They are suing to assess the reasonableness of the Government’s rejection of the independent commission’s recommendations.

A lawsuit is the only mechanism available to judges to review whether or not the Government’s reasons are rational.  Without that mechanism, there is absolutely no accountability of the Government.  Without that mechanism, commission recommendations are meaningless.

I am not taking sides with Provincial Court Judges on this issue, by the way.  I have insufficient knowledge of the law to predict whether or not the Provincial Government’s disregard for the Commission Report recommendations will be found to be lawful.

I am on the side of justice, and justice mandates that Provincial Court Judges be able to test that issue in a lawsuit (to be heard incidentally by totally independent justices of higher courts).  Justice also mandates that the public be educated about the process to avoid judges being “judged” unfairly.

You may notice that judges don’t publicly stick up for themselves.

Published October 20, 2011 in the Kelowna Capital News

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Controlling your answer at slow drivers

I don’t derive sadistic pleasure from picking on my friends.

From time to time I stumble upon a column topic when a friend shares a driving experience with me.

The views I express in my column are not always complimentary about the friend’s driving behaviour, nor driving attitude.

It doesn’t happen often enough, I don’t think, that those close to me are cautious about what they share with me in casual conversation.

While I am not shy about naming names in my column, I do protect a friend’s identity when using them for column topics.  Only those close to me could figure out who they are.

I’ve got a bit of an exception this time, and I confess that I’m feeling a bit nervous about it.  See, even without actually naming her, by referring to her as “my wife” I am considerably narrowing who I could be referring to.

Totally aside from the prospect of having to set up a mattress in the shed for a few days, I rely quite heavily on my wife to help me brainstorm column topics and I’d hate to do anything to compromise her willingness to continue doing so.

It was exactly in the context of trying to be helpful when I got the call.

She was calling from her vehicle.  Yes, hands free, but she knows my opinions about that.  Talking on a cell phone while driving is dangerous, regardless of whether or not you are using a hands free device.

It’s not your lack of access to the hand holding a handheld device that’s dangerous; it’s your lack of access to that part of your brain engaging in a conversation that is the problem.

And yes, it is different from talking to someone who is in the vehicle with you.  Do some research on the subject if you don’t believe me.

She had called excited about having a column topic for me, though I don’t know if her tone of voice at the time could better be described as “irritated” instead of “excited”.

“You should write about the danger caused by people driving too slow and causing road rage”.

My wife had been following someone driving 40 kms/hour in a 50 kms/hour zone, the slow driver clearly unsure of where he or she was going, slowing at intersections to read street signs.

She had been sufficiently irritated by the slow driver to use the expression “road rage” when suggesting the column topic to me, though I trust that she had been able to contain her feelings so as not to result in any road rage driving behaviour.

Can you see how I could not resist this column topic?

Driving 40 in a 50 zone is not dangerous.  Allowing yourself to become agitated because you are held back from driving the posted speed limit: now that’s dangerous.

I brought up my wife’s suggested column topic with friends a few evenings ago, to tease my wife.  A friend told of recently seeing a pick-up truck riding the back wheel of a scooter that was at its full speed, 70 kms/hour, in the fast lane between Kelowna and Westbank.  The scooter had temporarily gone into the fast lane to pass even slower traffic.

The pick-up driver was irritated by being temporarily held back from the typically 90 kms/hour plus flow of traffic along that stretch of highway (posted limit 80 kms/hour).  He showed his irritation by putting the scooter driver’s life in danger.

What is it that leads many of us to have those intense feelings of irritation when another driver temporarily holds us back?

More importantly, how can we ever allow those feelings to cause us to behave in such dangerous ways?

I challenge us all to be conscious of feelings of impatience and aggravation when driving.  Consciously recognizing those feelings as they come on might be a good first step.  As they arise, perhaps we can consider rationally how irrational those feelings are!

Perhaps a local psychologist might step in with a letter to the Editor.  I can see the problem, but I have zero psychological expertise to recommend how to fix it!  Perhaps some group counselling sessions might be in order.

Published October 13, 2011 in the Kelowna Capital News

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  • PAUL HERGOTT

  • PAUL HERGOTT

  • British Columbia Personal Injury Lawyer