“ICBC says I gave a false statement. Can they breach my insurance?”
One way in which ICBC can treat you as being in “breach” of your auto insurance is if they think you provided a false statement. For example, if you get into an accident but misrepresent the truth of what happened to ICBC, they may have grounds to deny you insurance coverage respecting any damages (to persons or property) that you have caused with your vehicle.
There are certain principles governing the definition of a false statement. ICBC must prove that what you said was a “wilful false statement.” They must prove that the statement was done intentionally, knowingly, and purposely, without justifiable excuse. They must also prove that the statement was material to the management or payment of the claim by being capable of affecting the mind of the insurer, either in the management of the claim or in deciding to pay it. The involvement of alcohol, for example, will likely be material to ICBC and affect the handling of a claim.
Not everything will constitute a false statement, however. A statement made carelessly, thoughtlessly, or inadvertently is not necessarily false. Same goes for if the insured who provided the statement had an honest belief in the truth of the statement’s contents.
Keep in mind that if you are involved in an accident, section 73 of the Insurance (Vehicle) Act Regulations requires the insured to provide prompt written notice of the circumstances of the accident. If you want advice on how to report an accident, contact the lawyers at Filkow Law.
I got injured in an accident. What’s my claim worth?
The answer depends on two things: fault and damages. If you can prove the
other person caused the accident, then you will be entitled to damages. But
Again, it depends. There are different types of damages that may comprise a
personal injury claim. Some are valued quantitatively: i.e., on the
approximate monetary value of the loss (such as the income you couldn’t earn
as a result of your inability to work post-accident). Others are valued by
qualitative factors and what courts in previous cases have awarded in
similar circumstances. Here’s a summary of some common types of damages.
Wage loss. If the accident causes you to be unable to work for some time,
and thus suffer a loss of income, then you can claim for your net wage loss.
You can also claim for future wage loss if you can prove that your
accident-related injuries might harm your ability to earn income down the
Lost housekeeping capacity and in-trust claims. You may have a claim if
your accident-related injuries prevent you from taking care of household
chores (such as doing laundry or shopping for groceries), or if someone has
to take special care of you because your injuries prevent you from caring
Special damages. These are any out-of-pocket expenses you incur as a result
of the accident or your injuries from it. Examples include taxi fare from
having to take a cab home from the accident scene, user fees for medical
treatment, or bus tickets because the accident prevented you from driving
yourself around town.
Future cost of care. If your injuries are going to require you to seek
specific medical care or treatment into the future, then you can claim for
General damages. Also known as “non-pecuniary damages,” this is the most
common basis for getting paid in a personal injury claim. This is money
intended to compensate you for your pain, suffering, and loss of enjoyment
of life. There is no mathematical basis for calculating this number. Every
case is different, and valuing the measure of general damages requires an
analysis of many factors, including your age, the severity and duration of
your injuries (both physical and mental), and whether the accident causes
any disability. Your previous lifestyle is also relevant: if your injuries
impair your ability to enjoy recreational or social activities, or your
personal relationships with friends, family, or significant others, then
that will inform your general damages claim.
Note that damages can be hard to assess. When fighting over damages at
trial, the plaintiff’s lawyer argues why his or her client should be
entitled to the highest possible amount of damages, while the defendant’s
lawyer argues why the plaintiff should only get a fraction of that amount.
The defence may also argue why some damages shouldn’t be awarded at all.
The court then decides what to award.
If you negotiate with ICBC, expect them to pay you something for your
losses. But don’t expect the adjusters to assess the damages with your best
interests in mind. It’s not their job.
For advice on what heads of damages you might be entitled to after an
accident, call Filkow Law for an initial consultation.
Filkow Law welcomes personal injury lawyer Blake Cooper to its legal team. Blake’s focus is on ICBC injury claims, acting for car accident victims who have suffered losses as a result of someone else’s carelessness on the road. He never represents the insurance company.
Blake has an intimate knowledge of how the law values personal injury claims. He also knows how ICBC works to dispute that valuation. As the insurance company, ICBC’s job is to defend the actions of its negligent drivers and to pay the injured victims as little as possible. While almost all of us in British Columbia are ICBC customers, the landscape changes when an accident strikes. Indeed, the claims procedure is largely adversarial.
In a negligence claim for pain and suffering, ICBC owes no duty to the injured victim, and employs a staff of insurance adjusters to challenge the strength of a victim’s case in order to limit the settlement payout. Adjusters are professional negotiators. They know that if an injured person rejects their settlement offer, the injured person’s last recourse is by starting a lawsuit, which ICBC will always defend with its own legal counsel. Accordingly, without someone in their corner, injured persons may find themselves at a significant bargaining disadvantage when it comes to settling their case.
As a plaintiff’s lawyer, Blake’s job is to level the playing field. He works with his clients to present their claims properly, negotiate effectively on their behalf, and/or fight their case in court.
If you are hurt in a motor vehicle accident, call Blake at Filkow Law to assist you.
Kevin Filkow recently spoke to new criminal lawyers and civil lawyers at the Trial Lawyers Association, “Trial by Fire” program. The main topic was what to do when someone is arrested or is in police custody. It was a very important and instructive discussion.
Although, the most fundamental and critical advice is that an individual should not make any statements to the police, there are many other important considerations, protections and strategies that must be communicated.
The discussion covered what the individual who is in police custody should do, what should the lawyer discuss with the police? What information should the lawyer receive from the police? What can be done to assist the individual being released from custody? Is there different advice depending on whether the arrest is for drinking and driving charge, domestic assault, drug charges or murder?
One of the most scary and unpleasant events for someone is to be in police custody. There is a serious imbalance of power. One’s fundamental liberties are at stake.A phone call to a lawyer is generally the only legal assistance at a very vulnerable time. The lawyers’ role and legal assistance is extremely important on many levels. Be sure to contact us if you have been arrested.
Being stopped by the police is never a fun experience. It can be very unsettling to be pulled over on the street or in a vehicle and questioned by the police. When you are stopped by the police, the very first question you would have is “what are my rights? Do I have to say anything? If so, to what extent?”
There are very limited exceptions – you may have a duty to identify yourself and to provide identification – the law in Canada is clear: every individual has the right to remain silent, the right to Counsel and to other protected rights as well.
1. Being stopped on the street
Suppose that you are walking on the street and encounter the police. If the police simply say “stop” or surround you then you are detained since the officer blocks your path in an intimidating manner.
A “detention” is the act of keeping back or withholding, either accidently or by design, a person or thing. R. v. Suberu, the leading case from the Supreme Court of Canada, defines a detention as following:
“A suspension of an individual’s liberty by significant physical or psychological restraint, with various factors helping to determine whether there was a psychological detention.”
The difficulty for you is that you do not know if the police have reasonable grounds to detain you. This ambiguity can easily be resolved by simply telling the police officer that you do not want to speak to them and ask, “Am I free to go?”. If the police tell you that you are not free to leave you are now detained and you have the right to be told why.
Generally, the police do not have the power to stop or question you without a reason. The police are only permitted to detain and demand your identification when they have a reasonable suspicions that you are engaged in criminal activity. If the police do not have a reasonable reasons the detention is illegal and any evidence they obtain can be excluded at trial.
However, there is an exception, if the police stop you to issue an appearance notice or if you have committed a by-law infraction or other ticket-able offence, you are under an obligation to identify yourself by giving them your name and address. It is a criminal offence to lie about your name or address and you may be charged with obstructing the police from carrying out their duties.
When you are detained, you have no obligation to say anything to the police, nor do you need to answer any of their questions. You are free to say absolutely nothing to the police as the law allows you to remain silent.
The police also have a duty to let you speak to a lawyer in private as soon as possible. It is highly recommended you speak to a lawyer before making any statements to the police.
2. Being stopped while driving
Just like when you are stopped on the street, your Charter rights apply to you and to anyone else in your car when the police officer pulls you over while you are driving. However, in Canada, driving is considered a privilege, not a right and the power for a stop comes from the Highway Traffic Act. Thus, while you are protected by the Charter rights, there are certain obligations that you have during a police vehicle stop.
The police are legally permitted to investigate in almost all driving situations if the police have reasonable grounds to believe you have committed a criminal offence, or if they observe you committing an offence under the Highway Traffic Act.
Under the Highway Traffic Act, a driver must present their driver’s licence, vehicle registration and a proof of insurance for the vehicle they are driving. Failing to cooperate with the police officer in this situation may give them the right to arrest you and lay a criminal charge for obstruction.
The police can also order you to step out of your vehicle if they suspect you are driving while impaired or they have reasonable grounds to concern for their safety.
However, the police power to stop your vehicle to investigate your license, insurance, registration, or the safety of your vehicle does not permit a comprehensive search of your car or an investigation into identities of your passengers. You have a right to say “no” to a police demand to search your vehicle.
Likewise, passengers do not have an obligation to identify themselves unless the police have reasonable suspicion or belief that they are involved in a criminal offence or by-law infraction.
Remember that it’s always your right to ask why you are being stopped and to contact a lawyer before answering any questions or consenting to the police requests.
Were you convicted when you were found guilty of a crime?
Did you receive a sentence after being found guilty or pleading guilty to committing a crime?
Was the decision unreasonable? Can it be supported by the evidence? Did the lower court judge make an error in law? Was there a miscarriage of justice?
Was your sentence imposed within the past 30 days?
If the answer to the above question is “Yes”, you may be able to appeal your sentence.
Simply, to appeal a sentence means to apply for a review of the decision of the lower court. In British Columbia, appeals from the Provincial Court are heard in the BC Supreme Court and appeals from the BC Supreme Court are heard in the BC Court of Appeal.
Commonly, grounds for an appeal are either based on an error in law or procedure; not facts.
In submitting a notice of appeal based on error in law or procedure, we are arguing that the judge made a mistake in the court proceeding concerning a matter of law or procedure. An example of an error in law is a judge that improperly admits evidence during trial that should have be excluded based on a violation of Section 8 (Right to be secure against unreasonable search and seizure) of The Canadian Charter of Rights and Freedoms.
It is important to note that the purpose of an appeal is not to retry the case. This means that lawyers will not submit new evidence or present witnesses. Rather, the focus of an appeal is to correct an error that was made by the lower court or guide the interpretation of the law.
The appeal process can be quite complex. Before you make a decision to appeal your case, talk to a criminal lawyer. Having an experienced criminal lawyer on your team can help increase the chance of a positive outcome.
Contact us if you are thinking about appealing your case.
The law of sexual assault in Canada is dynamic and constantly changing. There are several stages of the prosecution of a sexual offence that require important decisions on the part of the accused that you should not make without the guidance of experienced counsel.
When you are initially charged with a sexual offence, there will be bail considerations and an opportunity for negotiations with the Crown. Ultimately, if you are not guilty, you may end up having to go to trial.
An experienced lawyer will help you decide in which level of court your particular sexual offence case should be heard, in order to provide the best chances for an acquittal. Depending on the age and relationship to you of the complainant, a preliminary inquiry may or may not be fruitful. There are a wide range of highly technical procedures available to the Crown that a good lawyer knows how to anticipate and oppose.
At the preliminary inquiry stage, you want a lawyer with experience applying for witnesses to be compelled to submit to cross examination, and opposing other evidentiary motions.
At the trial stage, you want a lawyer with experience making third-party records applications, making prior sexual history applications, challenging the admissibility of confessions, cross examination, and most importantly, a lawyer who is very familiar with the unique nuances between the elements of different sexual offences. Depending on which sexual offence you are charged with, there may be subtle defences available to you based on your actions and/or intentions.
If you are guilty and want to take responsibility for your charges, you will need a lawyer who is current on the recent and continuing developments in the sentencing law of sexual offences. The aggravating factors that may increase your sentence for a sexual offence can be misunderstood and misused by Crown. You need a lawyer who can protect you from any such injustice and highlight any mitigating factors in your case to the court. There are also special sentencing considerations for sexual offences that you don’t face for any other type of crime, especially if the complainant is a youth. There are mandatory minimum jail sentences in some cases, and you could face very strict conditions for up to life. You need a lawyer who has experience with these procedures to help you navigate the system if you want to plead guilty in order to secure the best possible sentence.
Regardless of whether you are guilty or innocent, if you are charged with a sexual offence including but not limited to sexual assault, sexual interference, sexual exploitation, invitation to sexual touching, possession or distribution of child pornography, luring children, indecent exposure, voyeurism, human trafficking, or incest, you need an experienced lawyer with an expertise in this area of law to ensure you have the best opportunity for a good result.
If you have been charged with or are being investigated for a sexual offence, please don’t hesitate to contact us for a consultation.
Mr. Filkow is the chairing the upcoming 2017 Trial Lawyers Association Criminal Law Conference. In recent years, Mr. Filkow has spoken and presented at a number of legal education programs and seminars. Recent topics and issues covered are:
· Trial delays
· Police and Expert evidence
· Search and Seizure issues
· Forensic Sciences
· Drinking and Driving
· Motor Vehicle Act Stops
· Immediate Roadside and Administrative Driving Prohibitions
· Civil Forfeiture
· ICBC Breaches
For any criminal or driving matter, please do not hesitate to contact us for assistance at 604-558-8778.
Filkow Law welcomes its newest criminal defence lawyer, Jacqueline Halliburn.
Ms. Halliburn comes to us from Thompson, Manitoba, the crime capital of Canada, where she spent the last three years as a Crown Prosecutor.
She specialized in the prosecution of child abuse matters and serious violent crime. Accordingly, Ms. Halliburn knows exactly how the Crown thinks when they are prosecuting violent crime, particularly sexual assault, child abuse and pornography, and young offenders.
With her extensive experience in negotiations, bail and sentencing hearings, and trials at all court levels, we are excited to have her bring her unique perspective to the firm. If you have a case that falls under Ms. Halliburn’s specializations please contact us.