B.C.'s enhanced care system sets obstacles to suing criminal drivers: personal injury lawyer

At-fault drivers end up receiving more care, better benefits under new insurance scheme, says lawyer

B.C.'s enhanced care system sets obstacles to suing criminal drivers: personal injury lawyer
Erik Magraken, managing partner of MacIsaac & Company

British Columbians have been told that the new “enhanced care” no-fault insurance scheme would help them receive more, but this was a lie, says Erik Magraken, managing partner of MacIsaac & Company.

“Crash victims are learning the harsh reality that there is nothing enhanced about their rights and in reality they receive far less all while having to navigate greater government created insurance bureaucracy,” Magraken says to Canadian Lawyer.

Magraken singles out the issue of suing criminal drivers as perhaps the biggest deception of the public. The provincial government gave themselves a “sound bite” to convince British Columbians that their rights in the case of catastrophic injuries and catastrophic circumstances have been left intact, when in reality the hurdles in the way of suing criminal drivers will rarely be cleared, Magraken says.

In a blog post, Magraken said that B.C.’s new insurance system, which took effect on May 1, has deprived injured parties of the right to sue at-fault drivers, including those who are careless or reckless, for nearly all motor crashes, with numerous victims only recently learning this new reality and phoning him to seek advice regarding these changes.

While there is an exception for criminal drivers under s. 116(2)(f) of the Insurance (Vehicle) Act, RSBC 1996, c 231, such motorist needs to have committed a crime after Dec. 18, 2018 from a narrow list of “prescribed offences” and needs to be convicted.

Thus, one cannot sue the at-fault motorist unless the government has performed certain steps, regardless of whether their loved one was killed or whether they can prove that the at-fault driver was actually committing the prescribed crime, Magraken explained.

These steps include the following:

  • The police should attend after a crash to gather evidence and should determine that a prescribed criminal charge, rather than a provincial offence, is appropriate.
  • Crown counsel should find that there is enough evidence to approve the prescribed criminal charge.
  • No plea bargain to a lesser offence, such as a provincial offence, should be reached.
  • There should be a conviction for the prescribed criminal charge during trial.

Additionally, those who are involved in cases that have checked off all these steps can only sue the at-fault motorist for non-pecuniary damages and punitive, exemplary or other similar non-compensatory damages, rather than damages for all the actual losses suffered, Magraken said.

In effect, under the new insurance scheme, it is the at-fault driver who receives more care and better benefits for wage loss and out-of-pocket expenses, with such expenses being paid by taking away the rights of crash victims, Magraken lamented in another blog post.

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