This week on Legally Speaking with Michael Mulligan:
Before the introduction of mandatory no-fault ICBC insurance in May of 2021, if someone was killed in a motor vehicle accident, the deceased’s family could sue the person responsible for the accident to receive compensation for at least the financial loss of a loved one.
This typically occurred when the person killed had financially supported their children or partner.
In the first case discussed, the parents of a 17-year-old Korean boy who was killed in a car accident were awarded $327,000 based, in part, on expert evidence of the Korean tradition of hyodo duty.
This tradition, which is particularly applicable to the eldest son, was a legal obligation in Korea until the 1990s. It contemplates reciprocity and repayment to parents for the sacrifices they have made and meeting the expectations of parents’ wishes concerning care and old age.
The boy was killed three months before he graduated from high school. While going to school, he worked long hours in his parent’s restaurant without a salary and broadly assisted his parents, who spoke limited English.
The judge who decided the case permitted hearsay evidence concerning the boy’s specific statements concerning his concern and care for his parents.
Because the boy’s parents weren’t financially dependent on their son at the time he was killed, the ICBC no-fault insurance system would only have paid for a funeral, grief counselling, and $16,256 in compensation.
One of the profoundly unfair parts of the ICBC no-fault system is that any compensation for lost earning capacity when someone is injured or killed is based on what the person earned at the time of the accident. If, for example, someone is a student when they are injured or killed, any compensation for their inability to work is based on how much they were earning as a student and not what they would have earned once they graduated and started working.
Also, on the show, a case involving First Nations challenging the mineral exploration legislation in BC is discussed.
The Mineral Tenure Act in BC permits people to file a mineral claim over unclaimed Crown land and search for minerals there.
If minerals are found before there could be any commercial mining occurs, further government approval is required.
The First Nations argued that they should be consulted before allowing people to search for minerals.
The First Nations argued that their constitutional rights were violated and that the BC Declaration on the Rights of Indigenous Peoples Act, which attaches a copy of the United Nations Declaration on the Rights of Indigenous People, required additional consultation.
The judge hearing the case concluded that the BC Declaration on the Rights of Indigenous Peoples Act did not create any new legal rights that could be enforced in court but instead set out a government commitment to reconciliation.
Despite this, the judge determined that while the Mineral Tenure Act was not unconstitutional, the government is required to set up a system to consult with First Nations before issuing a mineral claim. The judge allowed the provincial government 18 months to set up a system to facilitate this.
Finally, a case involving an unsuccessful attempt by the BC Legislative Assembly to prevent special constables at the legislature from forming a union based on a claim of parliamentary privilege is discussed.