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News Release: Truth and Reconciliation in Practice

In late 2015, the Benchers of the Law Society of British Columbia have unanimously agreed that addressing the challenges arising from the Truth and Reconciliation Commission of Canada’s findings and recommendations is one of the most important and critical obligations facing the country and the legal system today. To the Truth and Reconciliation Commission, reconciliation is about establishing and maintaining a mutually respectful relationship between Aboriginal and non-Aboriginal peoples in this country. In order for that to happen, there has to be awareness of the past, acknowledgment of the harm that has been indicted, atonement for the causes, and action to change the behaviour.

The Truth and Reconciliation Commission of Canada’s final report contains 94 recommendations to guide Canada towards this goal of reconciliation. Recommendations 27 and 28 speak specifically to the legal profession. Recommendation 27 calls upon the Federation of Law Societies of Canada to ensure that lawyers receive appropriate cultural competency training, which includes the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal- Crown Relations. Recommendation 28 calls upon law schools in Canada to require all law students to take a course in Aboriginal people and the law.

The Benchers recognize that reconciliation goes beyond these two recommendations to include a number of legal issues currently impacting Aboriginal communities. These include child welfare, overrepresentation of Aboriginal people in custody and the need for enhanced restorative justice programs, the disproportionate victimization of Aboriginal women and girls, Aboriginal rights and title (including treaty rights, the implementation of the United Nations Declaration on the Rights of Indigenous Peoples, unresolved residential school claims, and issues concerning jurisdictional responsibility for Aboriginal peoples. While the majority of the recommendations contained in the communal report are not directly aimed at lawyers, their implementation largely depends on the engagement of lawyers. Accordingly, the Law Society of British Columbia will begin to implement key initiatives

Waxing your board: Liability on the slopes

This past winter has been one of the best in recent memory for snow conditions on the local mountains. While out enjoying sunny days, blue skies and fresh powder, few people have ever taken a break to read the ne print found on the back of a lift-ticket. You might be surprised to learn just how far reaching the effect of that fine print can be.

This is the law of waiver and what is commonly referred to as the “ticket defence”. The Courts have consistently upheld this as a complete defence in order to strike out the claims of injured people. These types of cases are becoming increasingly more common given the growing popularity of such adventure sports as mountain biking, bungee jumping and zip-lining.

In one case, an experienced skier signed a release when she obtained her ski pass. She was subsequently injured when she was run over while trying to get onto the chairlift, resulting in a dislocated hip. e allegation was that the employee had been negligent in not stopping the chairlift. e Court ruled that the skier had signed a release with clear wording, which released the ski hill from any liability. As a result, she had no claim for damages. As she had signed the document, it was not necessary to prove that she had actually read it.

Moreover, while you might expect that a contract releasing someone from liability would be signed, the Courts have ruled that a signature is not necessary. In these cases the consent of the party is based on ‘notice’. It is for this reason that there is wording on lift tickets and other posted signs at ski hills is in bold underlined capitals, or highlighted, so that the operator can argue skiers are on notice.

However, this fine print is not a blank cheque for operators to carry on their activities without any regard to safety. In some cases, the Courts will still find liability where there is “gross negligence”. One can often read between the lines in these cases that the Courts are concerned about fairness and an abuse of power by the person drafting the waiver.

In one instance, which made its way up to the Supreme Court of Canada, a visibly intoxicated person entered a competition on a ski hill to race over-sized inner-tubes. He made it through the first heat, su ering a cut over his eye, but was then seriously injured in the second heat. The Supreme Court of Canada ruled that the promoter of a dangerous sport owed a duty of care to take all reasonable steps to prevent him from participating in the sport when it was aware that he was visibly intoxicated. The Court ruled that the waiver in that case had not been brought to his attention.

Nonetheless, the ticket defences are successful in often surprising circumstances. One recent example that made its way up to the British Columbia Court of Appeal involved two people colliding on a zip line. While one person was stuck on the line, the tour operator negligently placed a second person on the zip line, leading to a collision between them, resulting in serious injuries. In that case, the Court of Appeal ruled that the release was enforceable and the claim for damages was therefore dismissed.

As with any legal claim, there may be strict time limitations at play within which a person must act or be barred from bringing forward a claim. You should consult a lawyer for specific legal advice.
This is all to say take care out there, and keep your edges sharp!

Proposed Changes to Disability Benefits

There are several upcoming changes to the rules regarding benefits received by people with disabilities from the ministry of social development and social innovation (the “ministry”) regarding asset limits, trust distributions and gifts.

According to a news release from the Ministry dated November 5, 2015, these changes will be implemented as of December 1, 2015. However, despite proposed amendments to the Employment and Assistance for Persons with Disabilities Regulation (the “Regulations”) on the Ministry website, we are still awaiting the actual changes to be implemented in the Regulations. We will review the proposed changes in this article.

Assets that people receiving disability benefits can hold in British Columbia are expected to be increased from $5,000 to $100,000 for individuals and from $10,000 to $200,000 for couples. This change means that people receiving disability benefits do not have to deplete their assets before receiving disability benefits. Furthermore, people receiving disability benefits can save and keep gifts, inheritance or other large sums of money they may receive while on disability without affecting their benefits, so long as it is under the prescribed limits.

This increase in asset limits means that any money from an inheritance or gifts or otherwise that are under the new limits will not have to be put into trust. However, if an inheritance amounts to more than the new limits, a discretionary or non-discretionary trust could be created to hold the excess funds. A discretionary trust is managed by a trustee who acts according to their discretion and does not allow the person receiving disability benefits to have control over the funds held in the trust. There is no limit on the amount that can be held in a discretionary trust. A non-discretionary trust is also managed by a trustee, but the trustee does not have total authority over how the money is paid out and the person receiving disability benefits may have some control over the trust funds. The limit on the amount that can be held in a discretionary trust is $200,000. With respect to distributions from trusts, the proposed changes state that the current $8,000 per year limit on payments from trusts to allow people receiving disability benefits to live more independently will be eliminated.

Finally, under current policy, people receiving disability benefits can only receive one-time gifts without affecting their eligibility. With the proposed changes, people with disabilities will be able to receive an unlimited number of cash gifts and still be eligible for assistance so long as the cash gifts do not exceed the new asset limits. These projected changes to the rules for people receiving disability benefits following the annual earnings exemption instituted by the Ministry on January 1, 2015 will enhance the financial security of disabled persons and allow them to receive more financial support without impacting their disability benefits.

Court of Appeal Upholds Liability Waiver Decision

In LOYCHUK V. COUGAR MOUNTAIN ADVENTURES LTD., 2011 BCSC 193 (the subject of a past blog entry available here), Goepel J. held that the Plaintiff could not sue an outdoor adventure company for the injuries she suffered in a zip-lining accident because of the release form she had signed. This decision was appealed to the BC Court of Appeal, which recently confirmed Goepel J.’s conclusion that the Plaintiff’s action was barred by the fact that she signed the release before the zip-lining.

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Court Affirms Need For “Convincing Evidence” Where Evidence of Injury is Entirely Subjective

In CARTER V. ZAHN, 2012 BCSC 595 (“CARTER”), a judgment released on April 24, 2012, Verhoeven J. held that requiring “convincing evidence” where a plaintiff presents only subjective evidence of ongoing injuries does not contradict Rothstein J.’s holding in F.H. V. MCDOUGALL, 2008 SCC 53 (“MCDOUGALL”) that there is only one standard of proof applicable to civil cases.

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Court of Appeal Considers Gap in Plaintiff’s Report of Symptoms

In EDMONDSON V. PAYER, 2012 BCCA 114 (“EDMONDSON”),  a judgement released on March 8, 2012, the Court of Appeal considered and rejected a number of arguments by the appellant (the Defendant), who was appealing from a judgment that awarded the Plaintiff $40,000 in non-pecuniary damages due to injuries suffered in a motor vehicle collision.  One of these arguments was based on the fact that there was a 31-month gap between reported symptoms in the Plaintiff’s clinical records.

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Court Awards $50,000 For Pain and Suffering For Soft Tissue Injury

On February 21, 2007, the Plaintiff was riding in the front passenger seat of a vehicle driven by her friend, the Defendant. As the Defendant proceeded through an intersection, a van broadsided the driver’s side door of her vehicle. The impact was reasonably severe and caused significant damage to the left side of the Defendant’s vehicle. Although the Plaintiff was wearing her seatbelt, she claimed that the force of the collision caused the right side of her body to strike the interior of the Defendant’s vehicle.

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Effect of Video Surveillance on Assessment of Damages

On December 23, 2011, the BC Supreme Court released a decision on the use of video surveillance evidence in a motor vehicle accident case. In WILKINSON V. WHITLOCK, 2011 BCSC 1781 the Plaintiff was injured in a 2007 motor vehicle accident in Vernon, BC. The Defendant was found completely at fault after it was determined that she drove through a red light and collided with the Plaintiff’s vehicle. As a result of the collision, the Plaintiff claimed that she suffered an injury to her back. During the trial, the Plaintiff testified about her symptoms.

Court Considers Criteria For Awarding “Scale C” Costs

Reasons for judgment on the issue of costs relating to the trial decision of X. V. Y., 2011 BCSC 944, were released on January 13, 2012 (reported at 2012 BCSC 37). The trial decision of X. V. Y., which dealt with a motor vehicle accident involving a police officer responding to an emergency call, was the subject of a past blog entry on contributory negligence and liability, available here.

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Plaintiff’s Claim For Interest on Disbursement Financing Disallowed

A previous blog entry (available here) discussed the case of CHANDI V. ATWELL, 2011 BCSC 1498 (“CHANDI”), in which recovery of financing costs on a reasonable disbursement was allowed by Registrar Cameron. In that case, Registrar Cameron declined to award the full amount of disbursement financing, instead making “allowance for disbursement interest based upon Registrar’s rates with the calculation of the total amount to be akin to the calculation of interest payable on special damages pursuant to the relevant provisions of COURT ORDER INTEREST ACT” (at para. 75).

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