Most legal news stories, movies and television shows are about criminal activity. Yet very few Canadians will face criminal charges or otherwise become involved in a criminal proceeding. On the other hand, far more Canadians become plaintiffs or defendants in civil actions.
Civil wrongs are committed, usually without malice or intent, yet still causing great harm to the health and dignity every person is entitled to enjoy. More specifically, these wrongs frequently take from individuals the freedom to enjoy life, pursue challenges, and meet obligations to others. A person’s liberty can be taken by incarceration, but it most often is taken by serious injury.
People end up across the desk from us expecting that we can right the wrong that has been done to them. They know we cannot return their health to them. Yet they trust us, the courts, and the law to right-side their lives as nearly as that can be done by money.
Injured people have little interest in the cognitive gyrations of lawyers, judges, and legislators. The brain is a cognitive miser gobbling up the largest share of calories consumed by the body. Cognitive processes take so much energy everyone defaults to trust more often than we are aware.
Our clients must default to trust even more because so much of their energy is depleted by pain and the stress of their injuries on their lives. Their trust in the law is a reasonable expectation. Justice is supposed to be the primary responsibility of a free and democratic society. The legal profession is supposed to be a trusted elite charged with the duty to see to it that those wrongs are right-sided. The law is to provide us with the tools to meet that objective. Sadly, government has been legislating away our ability to protect and preserve the dignity of the individual at an accelerating pace.
These limitations on our ability to obtain justice were already beyond our ability to explain. The sense of disbelief and betrayal coming from those sitting across the desk from us has become more palpable over the years.
It is impossible to give legitimate reasons why power has been steadily shifting away from the wronged individual. We are told lawyers just don’t understand how government works. That may be true. What lawyers do know is when government isn’t working.
Seriously injured people and their families, who desperately need confidence in the justice system, are shocked and appalled by the information we are obliged to impart. The ten most hated conversations we must now have:
- the lives of the young, the elderly and the disabled have no value under the civil law in B.C.;
- a cap on non-pecuniary damages, imposed without empirical data, has never remedied by government;
- insurers are making money sitting on an injured person’s claim and have done so since amendments to the Court Order Interest Act decades ago;
- a statutory bar protects the worker/employer tortfeasor from suit (even protecting the doctor who chops off the wrong leg);
- blatant conflict of interest is permitted with both 1st party and 3rd party claims handled by ICBC;
- ICBC has special police powers under the Police Act;
- there is a special tax imposed on those who obtain the assistance of lawyer. The tax does not apply to any other profession;
- a special section of the Evidence Act, covering everything from investigations into medical error right through to medical credentialing, shields the truth from the patient, the public, and even the Coroner;
- the NDP government has just wiped away the right to go to court for damages tailored toward restoring the liberty and dignity of the innocent victim of vehicular negligence, in favour of giving enhanced benefits to bad drivers who cause collisions;
- the ability to have a civil case tried by the democratic arm of the judiciary is in jeopardy. The provincial executive’s hostility to civil jury trials is well recognized and the pandemic is giving cover to test the water. Extending the Covid-19 civil jury trial suspension from October 2021 until October 2022 doesn’t pass the smell test.
People are losing faith in government and leaders at an alarming rate. We see in real time how the lack of trust in government leads to widespread Covid-19 misconceptions among the public. A loss of trust is followed by a loss of respect. We cannot have a loss of respect for the law.
Justice can be achieved only when those who have no power are on an equal footing with those who have power. Individuals need lawyers with the tools to access justice for them when they are hurt, vulnerable and butting up against power.
This is not to say that pooling resources in the form of insurance is a bad thing. It is vitally important that those who harm others through carelessness are financially accountable for the harms and losses they cause.
Yet we cannot lose sight of the fact that this accumulation of wealth is a form of power as those with resources can and do dominate within the legal process. Monopolization of automobile insurance in B.C. gave tremendous power to the executive branch of government. That power grew over the years as undisciplined politicians on both sides of the house found a convenient place to dump financial responsibilities. The losers are the innocent victims of negligence and the premium paying public.
People want to be free. They want to be able to go about their lives without their health and liberty being taken away by bad drivers. People hate being surveilled and controlled. People hate ICBC because of its power over them. Who, in their right mind, would think that the solution to any problem is to take even more power from the individual and shift it to an undemocratic dumpster?
