This week on Legally Speaking with Michael Mulligan: The ICBC no-fault system proposed by the NDP would save money by not providing compensation for the loss of future earning capacity.
Currently, with our fault-based system, if someone is seriously injured by a careless driver, they would be entitled to be put back into the position they would have been in had they not been injured. This could include a lump sum payment based on the current value of their lost future earning capacity.
The question for a judge is how much more would they have earned; had they not been injured.
Under the proposed ICBC no-fault system, whether someone is responsible for an accident or not, they would only be entitled to monthly payments based on their income at the time of the accident. This could be particularly unfair to young people who have just started working. A young person, with their first job following graduation, if permanently disabled, would only ever receive monthly payments based on how much they were making when they were disabled.
By moving to monthly payments for disabled people, rather than paying a lump sum, ICBC will be able to spread out their obligations for many years.
This helps explain how the government is planning to justify pre-election rebate cheques from an insurance company described as a financial dumpster fire.
By creating long term, underfunded, liabilities to make monthly payments, ICBC management would also help entrench a monopoly no-fault system because privatization would require these liabilities to be dealt with.
Also discussed on the show is the quia timet injunction obtained by Uber to stop the City of Surrey from issuing tickets to Uber driver for not having Surrey business licences, which Surrey would not issue.
A quia timet injunction is a special kind of injunction that prohibits future, rather than current, conduct. This kind of injunction may of some use to prohibit the pre-planned obstruction of buildings, roads, ferries, and other infrastructure by natural gas pipeline protestors.
Finally, a new trial is ordered in a case where a judge found that a Saanich police officer assaulted a man he pulled over. The trial judge found that the police officer seriously injured the man, however, the municipality of Saanich didn’t have to pay because they hadn’t been provided written notice within 2 months of the incident. The police officer also avoided having to pay for the man’s injuries because the Police Act exempts officers form personal liability unless they engage in “dishonesty, gross negligence or malicious or wilful misconduct”.
The Court of Appeal ordered a new trial because the trial judge had not considered whether the officer who assaulted the man had engaged in “malicious or wilful misconduct” which is different from “gross negligence”.
Legally Speaking with Victoria Lawyer Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 am.
An automated transcript of the show:
Legally Speaking Feb 13 2020
Adam Stirling [00:00:00] Time for Legally Speaking, joined by Michael Mulligan from Mulligan Defence Lawyers. Michael, good morning, thanks so much for joining us, as always.
Michael T. Mulligan [00:00:06] Hey, great to be here. It was good news, none of the roads were blocked. I was actually able to get here was great.
Adam Stirling [00:00:12] Well, there we go. Here we go. I’m not sure what’s going to happen tomorrow? I know there have been rumblings of certain shutdowns and whatnot contemplated. We’ll have to find out when we find out. There’s so much going on this week in the legal world. One would be forgiven for forgetting that we had a major change announced to our public insurer recently. And you want to touch on that?
Michael T. Mulligan [00:00:30] Yeah, you’re quite right. It’s been a Sharknado of legal activity for the last week non-stop.
Adam Stirling [00:00:35] I like that.
Michael T. Mulligan [00:00:37] So first on the Sharknado agenda, so more out of the proposed changes to ICBC, this suggestion to move to a no-fault ICBC model. One of the issues that have arisen there is that people have realized that and the AG has confirmed that the proposed model would do away with a concept that we currently have, with our tort-based model, of what’s called loss of future earning capacity. Now, what’s that and why should you keep your eyes open when somebody is discussing the idea of lost future earning capacity?
Adam Stirling [00:01:15] Yes.
Michael T. Mulligan [00:01:15] Well, the idea there would be if somebody ploughs into you, currently, and they are found to have been careless and they injure you. One of the things that a court would be able to award you, would be damages and loss as a result of what you’re going to not earn in the future. So, let’s say, for example, somebody has a job, they’re badly injured, they’re unable to do the job. What you would try to do would be to figure out how much they would have earned, had they been able to keep doing what they were doing, and taking into account how things are likely to change in the future, and then you would award somebody what will the present value of that amount. Right.
Adam Stirling [00:01:56] Now, if I get injured, I can’t do my physical labour job anymore, but I find lucrative employment doing a non-physical job. Does that count against the money I am owed, or can I get paid as if I had those two full-time jobs concurrently for the rest of my life?
Michael T. Mulligan [00:02:09] Great question. No, what somebody would be entitled to; the concept for their current model, is that you try to put the person into the position they would have been, but for, what happened to you? Right. And so, if you found equivalent work, you haven’t lost anything in that way, and nor you shouldn’t be paid. You haven’t suffered a loss.
Adam Stirling [00:02:28] Okay, Okay.
Michael T. Mulligan [00:02:29] But if you have suffered a loss of your ability to work and earn money in the future, judges in the current model would try to take into account future changes like your ear would be an example. Let’s say somebody has just graduated from high school and they’ve got their first job at a fast-food restaurant making a modest amount as they decide what they’re going to do with the rest of their life. Well, if that person in the current system got terribly, horrifically injured so they were unable to work or could only work part-time or in some limited way. You wouldn’t simply assume you’re just going to stick with that job you’ve got at the fast-food restaurant for the rest of your life. You might take into account other things to determine that person’s unlikely to remain earning a small amount for the rest of their life. Right. The proposed no-fault model would not do that. The no-fault model would simply assume that whatever what you’re currently making is going to carry on forever. And so, you would take the amount of money somebody made at the fast-food restaurant and you would then continue to pay them that amount as a result of their inability to work because of their injury. And here’s the other, I think, very important point, I mentioned that the idea of the present value of future earnings. Boy, that’s a mouthful. But this, I think, helps explain why it would be that the government would claim they would be in a position to mail people refund checks right before the next election as a result of these changes. How can that be? If you’ve had this institution that’s been losing money. Well, one of the critical changes that this system would involve is that under our current model, a person would be entitled to that amount of money as a lump sum. Right. And it’s referred to as, again, the present value of that future earnings. So, you would take the future earnings. You would discount them for the amount of interest you might earn with that sum of money be given right now.
Adam Stirling [00:04:25] I was going to say, what’s the interest rates? We do that in economics, you have to use law Patel’s rule to figure out the present value of something ad infinitum.
Michael T. Mulligan [00:04:31] Correct.
Adam Stirling [00:04:31] Say, if I give you $5 a day from now until infinity, is that infinity dollars or does it have a present value that’s smaller than infinity? The answer’s actually yes.
Michael T. Mulligan [00:04:39] Right.
Adam Stirling [00:04:39] It’s smaller than infinity. But, um. So, the discount rate would just be the interest rate?
Michael T. Mulligan [00:04:43] Yeah. You would figure out things you’d have to take into account. Like how much money would you were had you not been injured? Yeah. You would take into account things like, well, you may earn more money later. We’re not going to assume you’re just sticking with the job at Wendy’s for the rest of your life simply because you just graduated and got that job. But you would discount that for the interest you would earn on that money. You also have to take into account things like the effects of taxation. But the point is the person would be given that lump sum of money.
Adam Stirling [00:05:08] And now and do whatever they want with it.
Michael T. Mulligan [00:05:09] Yeah. Presumably, a prudent person would put that into an investment and use that to live on because they can’t work anymore. Because after all right, they were critically injured.
Adam Stirling [00:05:17] Okay
Michael T. Mulligan [00:05:17] Now, the change and here’s how it would be that you could suddenly and magically give everyone refund checks from an organization you’re claiming is a dumpster fire. Well, the previous government, of course, has been, I think, rightly criticized for taking money out of ICBC reserves, the savings they’d have to pay for claims. This change would mean that you would no longer get that lump sum of money, but instead, you would be doled out the small amount each and every month until you presumably would no longer have been earning any money or you die.
Adam Stirling [00:05:52] So it’s the backwards.
Michael T. Mulligan [00:05:53] So by spreading it out and just giving people a small amount, now. It’s going to result in immediate savings, but a long-term liability.
Adam Stirling [00:06:03] Interesting.
Michael T. Mulligan [00:06:03] And so that is one of the reasons why you’d be able to take this thing that you call a dumpster fire and then immediately say we’re sending you a refund check. How did that possibly happen? Wow. It’s like magic. Now, if you’re ICBC, right, of your employee there or whatever. And there is an interesting notice sent out by the union representing the employees at ICBC as soon as this announcement came out about the no-fault proposal, talking about how that would mean maintaining and protecting the jobs of over 5000 people across the province. They were quite excited about it. Here’s why. If you have an insurance circumstance where the monopoly insurance company has all of these long term obligations which have not been financed to pay, for example, the lost wages for that person over the next 40 years, each and every month, you’ve now got this enormous unfunded future liability. You’ve got to you need to keep paying that person. You haven’t given them the lump sum. And so by doing that, you’re going to, after a period of time, entrench this government-owned monopoly insurance company, because who wants to take over a company which has massive unfunded future liabilities to pay all of the injuries and losses for these people over an extended period of time.
Adam Stirling [00:07:21] Yeah, Wow…
Michael T. Mulligan [00:07:21] So it’s it’s subtle and you have to look at those things. But it’s…
Adam Stirling [00:07:25] Huh.
Michael T. Mulligan [00:07:25] … Insidious. It’s sort of like rather than taking the money from the reserves to balance the budget, you’re taking money from the disabled in order to send refund checks to people right before the election. It’s this goes back a little way in BC politics. But when you think about that, it’s right up there with the Vander Zalm and proposal now from a number of years ago for cheaper beer right after the election. It’s that we’re going to send you a refund check from ICBC. Magically, the dumpster fire has turned into a slot machine. And that’s because, in large part, we’ve stopped giving the money to the people who need it now, we’ll spread it out and will instead send it as a refund check right before the election. Pretty pretty crass.
Adam Stirling [00:08:11] Wow. And, and I’m, I’m reeling here because my math brain is going through how the numbers would work. So if we ever wanted to change back from this system to go from the infinite payments until one dies to one lump sum, now, that would mean that all of the money flowing out of the corporation would have to be put back in reverse. And you’d get lump sums at that point to compensate the person for how much they would have expected otherwise if the infinite payments had continued.
Michael T. Mulligan [00:08:36] Yeah…
Adam Stirling [00:08:36] Wow…
Michael T. Mulligan [00:08:36] And so if you’re a union member or an executor, ICBC, and you want to ensure that your job is never going to go away, one way to try to entrench yourself would be to ensure that there’s a whole pile of unfunded liabilities to all these people, the money for which would be future insurance proceeds. Good luck trying to wind that thing down. And it also means for all those people who wind up in that position, if anyone’s been through the experience of dealing with the workers compensation board, what it means is that you would be as an injured person dealing with this government entity for the rest of your life. They’re going to be, it’s going to be like a lifetime WCB claim would be now. But you should know full well when you get a refund check from the dumpster fire company right before the election, know where that’s coming from, there has been no magic pool of money found. It is exactly that. We’re just going to defer that liability to later and send you a check of your own money before the election, hoping that you’ll vote for the current government.
Adam Stirling [00:09:48] Let’s take a quick break, Legally Speaking, with Michael Mulligan, Barrister, a Solicitor with Mulligan Defence Lawyers right after this.
Commercial [00:09:54] COMMERCIAL BREAK.
Adam Stirling [00:09:54] Michael, I’d like to thank you for your analysis. You are the first observer I have heard remark on that potential financial change to ICBC, which would cause there to be ongoing financial liabilities for the corporation from now until forever. That has profound implications on any future changes that could be made, including horse privatization being the ultimate one. It would be almost like trying to privatize CPP. You couldn’t do it because the money for the existing liabilities just doesn’t exist.
Michael T. Mulligan [00:10:22] That’s right. Think carefully when that pre-election check shows up where that’s coming from. It’s not free magic money from the dumpster fire.
Adam Stirling [00:10:29] Indeed. This is an interesting one. An injunction against Surrey issuing tickets to Uber drivers for not having a business licence. Now, you’ve talked about interlocutory or interim injunctions in the past and the RJR McDonald test. What is this matter? Because it’s similar, but it’s not exactly the same is it?
Michael T. Mulligan [00:10:47] No one is going to great Latin name here talking about…
Adam Stirling [00:10:50] I can learn a new one.
Michael T. Mulligan [00:10:51] Yeah. Quia timet
Adam Stirling [00:10:53] Quia timet
Michael T. Mulligan [00:10:53] Queer too. I’m probably mispronouncing it, joking is sort of its job security for the legal profession, which is no doubt rather than calling that something like a pre-emptive injunction or something that everyone would look at and say, oh yes, I see what that is.
Adam Stirling [00:11:06] Ah Yes.
Michael T. Mulligan [00:11:06] Perhaps designed so that people read this over and think, boy, I better get a lawyer it’s going to be really embarrassing to try to pronounce this in court. So, with that jab at the legal profession for continuing to use Latin, here we are. This was an injunction applied for by Uber to stop Surrey, Surrey, of course, being a place where a lot of taxi drivers live, and so the mayor of Surrey concluded it would be good politics to start issuing tickets to Uber drivers coming into Surrey to pick up passengers. And I think they were actually luring them in and some sort of a municipal sting operation, you know, calling an Uber, waiting for somebody to show up and then having to be ah ha. Your ticket.
Adam Stirling [00:11:47] Can they do that. I want to say that’s entrapment, but I’m not a lawyer. And that’s what that’s what they’d say in the movies. I don’t believe it really was. But what is that? I don’t even know.
Michael T. Mulligan [00:11:55] That’s, that’s Surrey for you.
Adam Stirling [00:11:56] Okay, that’s Surrey.
Michael T. Mulligan [00:11:58] So but that’s what they were doing. And then they would, there was evidence that the Uber said, oh, fine, we’ll buy, we’re happily purchase business licences from you Surrey, which they responded, no, you can’t buy them. They’re unavailable.
Adam Stirling [00:12:11] We’re going to punish you for not having the thing that we won’t sell you because it doesn’t exist yet.
Michael T. Mulligan [00:12:16] Yes, it’s sort of like getting a ticket for not having insurance on your electric skateboard, which, of course, you can’t purchase.
Adam Stirling [00:12:22] I see.
Michael T. Mulligan [00:12:23] That’s what Surrey was trying on. And I should say, it’s quite clear that the municipality of Surrey or the city of Surrey, whatever they are, has absolutely no legal jurisdiction to do what they were doing when the ride-hailing legislation was brought in, the various pieces of legislation, provincial that deal with that, including Motor Vehicle Act, Community Charter, Local Government Act. All of the relevant bits of legislation were amended, and to make it crystal clear that you can’t do this. You don’t as a municipality again, not your jurisdiction. So the particular type of injunction that the last name is interesting and I think also interestingly, potentially in the context of the various other announced protests like sort of blocking trains or blocking, you know, hey, we’re going to block all the bridges or so forth. This particular kind of injunction is an interesting one is different from the sort of injunction you might get if somebody was, you’re trying to stop something somebody was currently doing.
Adam Stirling [00:13:27] Okay.
Michael T. Mulligan [00:13:27] Well, let’s say somebody is currently, you know, blocking the, I don’t know, courthouse.
Adam Stirling [00:13:32] Okay, okay.
Michael T. Mulligan [00:13:32] All right. You might go and seek an injunction asking that the current, you know, blocking of the doors at the courthouse be stopped so people can get in and do their business. This kind of injunction is intended to deal with the anticipated activity.
Adam Stirling [00:13:47] So we don’t have to wait for them to block to stop them. We can stop them in advance.
Michael T. Mulligan [00:13:51] Correct. So, you don’t need to wait. So that might be pretty important when you have announcements coming about, hey, what we’re planning to go block tomorrow. And if you literally translate that Latin phrase, it’s translated “to because he or she fears”. That’s the concept. So that might be a good name for it. Why don’t we rename that the fear injunction? Everyone can easily appreciate what on earth is going on. And there’s a slightly modified test for how you can get such a thing. In order to obtain a quia timet injunction, a fear injunction; you would need to establish that there’s a high probability that if the injunction is not granted, the anticipated activity will occur imminently or in the near future, a future thing.
Adam Stirling [00:14:36] Okay.
Michael T. Mulligan [00:14:36] You would also have to show that there is a serious question as to whether the rights of the person applying for it would be interfered with. And then there’s a balance of convenience, irreparable harm analysis, sort of like any other injunction.
Adam Stirling [00:14:49] Okay.
Michael T. Mulligan [00:14:49] And so Uber was able to obtain this injunction which prevents future conduct on the part of the city of Surrey. And the reason it’s a little bit different is they were issuing your individual tickets to, you know, Bob showing up in his Toyota Corolla to pick somebody up in Surrey. Hey, Bob, here’s a ticket, you have a business licence. And so, the injunction prohibits Surrey from continuing on in that vein. And that form of injunction, I think is something that some consideration ought to be given to, particularly where you have a clear indication that protesters are planning to do something unlawful in the future, like shut down a railway or shut down a port or shut down a whatever. That information is not secret. Anyone with a few minutes can go online and figure out what’s likely to happen because you’re not successfully whipping up a crowd to block the ‘fill in the blank’ unless you start posting that.
Adam Stirling [00:15:48] So one of the tests is a serious question of a person’s rights being, and I can’t remember the exact word that you use, because if that’s a binary classification, the protesters could just say there is a serious question that my rights are being infringed here. Though, not all the conditions are met. Ergo, the injunction cannot be issued.
Michael T. Mulligan [00:16:03] Well, it would be analyzed from the point of view of the plaintiff, the person asking for an order.
Adam Stirling [00:16:08] Oh okay…
Michael T. Mulligan [00:16:08] …that there is a serious question…
Adam Stirling [00:16:09] Oh i have it backwards…
Michael T. Mulligan [00:16:09] As to whether the plaintiff has a right that would be breached by the activity.
Adam Stirling [00:16:12] Okay, I see. So, I had it backwards. OK. Thank you.
Michael T. Mulligan [00:16:15] Yeah. So, you know, somebody might say, hey, look, you know, I’m a trucker. You know, my job is to deliver things to the port in Vancouver. You know, we read online that they are trying to whip up a group of people to obstruct our entrance to the port tomorrow. Hey, how about an in advance injunction? This is imminent. It’s coming. Right. You’re not permitted to do that. Lay on the fear injunction.
Adam Stirling [00:16:38] Interesting.
Michael T. Mulligan [00:16:39] And you’d be able to obtain one in advance. You don’t have to wait for the blockade to show up and it’s not going to exactly be rocket science to figure out what’s coming tomorrow.
Adam Stirling [00:16:47] Interesting. That’s fascinating.
Michael T. Mulligan [00:16:49] Ya.
Adam Stirling [00:16:50] Now, I think we have. Let’s see. We have a four and a half minutes left. We have one other matter I think we can touch on, if you’d prefer.
Michael T. Mulligan [00:16:56] Sure. I think that’s worth commenting on. This was a decision from the Court of Appeal recently, and it involves a police officer from Saanich, who was sued as a result of an allegation that he assaulted somebody while using unnecessary force, pulling them out of their car and throwing them down to the ground following a stop and impaired driving stop about 10 years ago. So, the background is that the individual is thrown out and seriously injured. The judge at trial found his injury and damages lost were in excess of, I think, $120,000. No doubt that happened. And the judge at the trial found that the police officer had committed all the elements of the assault. The person ran up on the rocks, however, and this is something people should know about for this reason. The, if you wish to sue the municipal, a municipality, the district of Saanich, who would be responsible for that sort of activity by police officers they employ you need to give them written notice within two months or you lose the right to sue them. Didn’t give written notice. So, all that was left was suing the police officer. The police officer enjoys some immunity from being sued and that immunity attaches under the Police Act, unless a judge finds that the police officer acted dishonestly, with gross negligence or engaged in malicious or willful conduct.
Adam Stirling [00:18:22] Yes.
Michael T. Mulligan [00:18:23] And in this case, the judge found that the municipality, even though the man was seriously injured by the police officer and that that would otherwise amount to an assault and represent a significant loss to the man, the municipality was off the hook to the written notice wasn’t given in time. And then the judge found that even though the officer was acting in the course of his duties because he was in the course of his duties, it wasn’t dishonest conduct or gross negligence. And so, the man received no compensation for his injuries. The Court of Appeal has overturned that and sent it back for a new hearing on the basis that the judge did not consider whether the police officer’s conduct was malicious or willful misconduct, which the court of appeals said is different from gross negligence, saying the judge should have considered that separately. So, it’s going to go back. There’ll be a new trial. But people need to know about is that if you were going to sue the municipality or a police officer employed by your municipality, you need to make sure that the municipality gets written notice within two months or you may be out of luck. And even if a police officer engages in conduct that would amount to this, they are off the hook, personally, unless they are dishonest, gross negligence or malicious or willful misconduct. So there may not be a soft landing if you fail to tell the municipality on time, you’re coming after them for getting thrown to the ground when the police officer arrested you in an unnecessarily rough fashion when they stop you for a traffic infraction.
Adam Stirling [00:19:54] I think that it’s of benefit for all of us to reflect on the fact, that it seems entirely reasonable, that there has to be time limits on bringing action or expressing these concerns. Otherwise, you have somebody yell, ten years ago this happened to me and well okay, all the evidence is gone and the witnesses, who knows where they are like there has to be that time. Now, two months is 60 days, I think under the Local Government Act. That’s entirely reasonable. This is a fascinating case.
Michael T. Mulligan [00:20:17] Right, the problem is, of course, there are time limits, but for anything other than the municipalities, they’re much, much longer.
Adam Stirling [00:20:23] They are.
Michael T. Mulligan [00:20:24] And the problem is that an ordinary person, who’s still dusting themselves off from being thrown down to the ground, may not know they have to get written notice off within two months.
Adam Stirling [00:20:32] Fair.
Michael T. Mulligan [00:20:33] And so it can work. I think some serious unfairness. And when you read this case, you’re sure left with the impression that the judge found that the conduct was completely inappropriate. The man was seriously injured. He suffered a real loss. But nobody apparently, was so far, responsible because of this notice requirement and the special protection under the Police Act afforded the officer personally. So, it does seem rather unfortunate and harsh in the case of this man. So, for those listening, the takeaway is if the municipalities might have done something wrong, let them know in writing as soon as possible. Don’t delay.
Adam Stirling [00:21:07] And when in doubt, seek legal advice.
Michael T. Mulligan [00:21:09] You never know because it might all be in Latin and very hard to pronounce.
Adam Stirling [00:21:12] Michael Mulligan, barrister and solicitor with Mulligan Defence Lawyers every Thursday during the second half of our second hour here on CFAX 1070. Thank you so much for your time, as always.
Michael T. Mulligan [00:21:21] Thank you.
Automatically Transcribed on February 13, 2020 – MULLIGAN DEFENCE LAWYERS