Big car crash: not big injuries!

Here is a classic misconception: big car crash = big injuries. This is one of the biggest misconceptions that exist around my job. And, it drives me insane…

Believe it or not, the severity of a car crash is NOT proportionate to the severity of harm or injuries that someone experiences in a car crash.

Sadly, though, most people don’t think that. Most people think that a “small” crash or a crash involving slow moving vehicles won’t result in anyone suffering (serious) injuries. BUT, that is NOT true!

And, ICBC preys on that misconception….and they even have a policy that reflects it. It is called the ‘Low Velocity Impact Policy’, also known as the LVI Policy.

Really, the LVI Policy hurts car crash victims. It really does…

And, here’s ICBC’s LVI Policy: basically, when someone is involved in a car crash that involves “slow moving vehicles”’ (having low velocity), then the people in the vehicles are not entitled to any (or hardly any) compensation for their injuries. ICBC representatives will actually tell this to car crash victims.

ICBC’s argument is this: if the vehicles weren’t badly damaged (and were moving slowly at impact), then the occupants couldn’t be injured.

But, that isn’t the case! The speed of the cars in a crash has very little to do with the injuries that someone suffers.

The truth is that someone who is involved in a high-speed crash can suffer ZERO injuries, not even a scratch. AND, at the same time, someone who is involved in a slow moving, less serious crash can suffer VERY serious injuries that require lengthy hospitalization and surgery. This is a fact.

Now, I regularly speak to people who have been injured in a car crash. And, one of the typical concerns that I hear is that they don’t think they are entitled to anything because their crash was ‘low velocity’ (as told to them by ICBC).

And, this is what I tell them: “ICBC is DEAD wrong! Of course you are entitled to money to recover you losses.”

The LAW is that if you suffer injuries, then you are compensated for those injuries. And, the amount of money that you receive is proportionate to the severity of the injuries and the impact that those injuries have on your life.

So, in other words, it doesn’t matter how fast the vehicles were travelling; if you suffer injuries/losses, you are entitled to compensation for your injuries/losses, period. The bigger the losses, the more money you will receive (regardless of how fast the cars were going).

And, those losses can include an award for pain and suffering, for income loss (from money that you would have otherwise earned), and for medical treatment (for treatment that you have to get as a result of the crash).

If you are ever in a “low velocity crash”, remember this: ICBC isn’t the final decision-maker on whether or not you will receive money. Our courts have the FINAL WORD. And, the LVI Policy is NOT the law in British Columbia.

And now you know.

 

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Column originally posted on Castanet.net on July 9, 2013: Big car crash: not big injuries?!

ICBC advice you need to know!

While it’s one of my primary areas of practice, I try to stay away from writing about personal injury law topics. After all, there are already several other local lawyers who regularly write about car crash/ICBC claims.

But, earlier this week, I met with another lawyer and helped her out on one of her personal injury files. The advice that I provided was important and got me thinking, “Everyone should know this!”

So, this week, I am going to write about personal injury law and will provide you with TWO BIG TIPS that everybody (who is involved in a car crash) should know:

  1. You need to aggressively pursue medical treatment; and
  2. You need to preserve the evidence.

I’ll explain…

When you retain a lawyer to handle your car crash/ICBC claim, the lawyer will take care of most everything in the lawsuit. But, the lawyer can’t do everything for you…you must do two things yourself.

To begin, YOU need to AGGRESSIVELY PURSUE MEDICAL TREATMENT.

But, what does that mean? Well, it means that you must be proactive in ‘getting better’.

If you’re injured in a car crash, you need to go to your doctor and tell him/her that you’ve been injured. Then, if your doctor gives you advice, you MUST follow that advice (to the extent that it doesn’t hurt you, of course).

Then, after you follow that advice, you should go back to your doctor and provide him/her with an update and then follow any additional advice that he/she may give.

You must also follow the advice of your other medical practitioners, too. This is very, very important.

Here’s an example: Your family doctor, Dr. Smith, tells you that you need to see a chiropractor for injuries that you sustained after a recent car crash. You then attend a chiropractor, Dr. Jones, and the treatment is helping you. You continue to see Dr. Jones as often as he suggests. Maybe a few months later, you go back to Dr. Smith and provide an update on the progression of your injuries. In the update, Dr. Smith suggests massage therapy. You must then engage in massage therapy. And, you should not stop chiropractic care until clearing it with Dr. Jones.

Basically, you must do everything your medical practitioners tell you to do.

There are reasons for pursuing medical treatment like this…

First, you have a legal duty to ensure that your losses (i.e. your physical injuries) are as small as possible. In the legal world, this is called “mitigating your losses”. In a personal injury/car crash claim, this includes following ALL medical treatment.

The second (and more important) reason for ensuring that you follow (and follow up with) medical advice is because it will hopefully make you better, allowing your injuries to completely resolve!

Next, you need to PRESERVE THE EVIDENCE.

In a car crash claim, this may include taking photographs of the vehicles or taking photographs of your injuries. So, if you have cuts or bruises, you should take pictures of that.

But, most injuries in car crash claims are invisible – i.e. they are soft tissue injuries. So, how do you preserve or document those injuries? Well, you create a journal.

In that journal, you should record how your injuries have affected you (i.e. how you’re feeling every day or week). In your journal, you’ll want to write about whether or not you have difficulty sleeping, watching a movie, or wakeboarding. You’ll also want to describe what areas of your body are most affected when you perform these activities. It’s easy stuff, but it’s time consuming… and very, very important.

And why is it so important?

Well, consider this: do you remember what you had for dinner on April 3, 2013? Probably not, right? So, without recording in a journal, how would you remember your neck or back pain months ago? Answer: you wouldn’t.

But, why do you even need to accurately remember how your injuries have affected you?

Well, here’s the answer: if you’re injured in a car crash, you are entitled to money to compensate you for your losses. And, how much money you receive is proportionate to how much you’ve lost or, in other words, how much your injuries have negatively affected your life. So, if your life has been significantly affected, you are entitled to more money.

So, if you can’t completely recall how your injuries have affected your life (when asked years later by a judge or an ICBC lawyer), then you won’t receive all the money that you are entitled to. It’s that easy.

Now, having said all this, here is the most important piece of advice: be careful when driving…

No matter how much money you may get from a lawsuit, it will never compensate you for the loss of your health.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Column originally posted on Castanet.net on June 18, 2013: ICBC advice you need to know

Sue your family!

When in a car, I prefer to drive. I am not sure why, but I do.

But, now and then, I am a passenger in a vehicle. My friends and family members are good drivers, but they can make mistakes… And, if they did make a mistake and caused a crash that resulted in me suffering some injuries, I MIGHT sue them.

I know, I know… I sound like a horrible friend. But, I’m really not (at least I don’t think I am).

I’m willing to bet that most people wouldn’t ever consider suing their friend, husband, father, daughter or other loved one who was driving a vehicle when a crash occurred, resulting in injuries. The reality, though, is that it should be seriously considered.

Imagine this: you are a passenger in your father’s vehicle and he is driving. You are going to see a movie together. On the way to the movie, your father changes lanes without signaling and without looking in his blind spot. Sadly, he hits a truck that was in his blind spot and a crash occurs. As a result of the crash, you suffer injuries to your neck and back and start getting regular headaches. From the crash injuries, you lose some time at work, you start to incur medical expenses, and you aren’t able to exercise or sleep restfully.

Should you just “eat” your losses? My answer: no.

You father buys insurance for this reason, specifically.

In British Columbia, motorists buy two types of insurance:

  1. First-party insurance: This type of insurance covers the person who BUYS the insurance in the event of a loss. To illustrate, if you cause a crash, the first-party insurance will cover repairs to your vehicle.
  2. Third-party insurance: This type of insurance protects you when you are sued by a third party for losses that you caused. To illustrate, if you cause a crash and hurt someone, then that person (who was hurt) has a legal claim against you (i.e. for medical expenses, pain and suffering, and loss of income). Third-party insurance will ‘cover’ you if this happens.

So, quite frankly, if someone causes a crash that causes you to suffer injuries, why wouldn’t you sue them to recover your losses?

Yes, I appreciate that they are a loved one. But, again, there is insurance coverage for this situation. The insurance company deals with the legal claim (and pays out the losses to the harmed parties). And, for the most part, your loved one won’t typically be involved in the lawsuit.

Family members suing each other in personal injury claims is more common than you might think, too.

I have heard this said before, and it is true: sometimes, you should sue your family members.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on May 14, 2013: Sue your family.

Witnesses are crucial in lawsuits

Think of some high profile cases and imagine what would have happened if there were no witnesses. Consider:

  • Robert Pickton’s case, in which over 120 witnesses were presented;
  • Robert Dziekanski’s final video-taped moments at the Vancouver Airport and how the RCMP officers deliberately misrepresented their actions; and
  • Geoff Mantler’s kick on Buddy Tavares, which was witnessed and video-recorded by Castanet’s Kelly Hayes.

Witnesses were CRUCIAL in these cases to ensure that the truth was unearthed.

I can appreciate, though, that people can be hesitant to lend a hand… Sometimes, in criminal cases, witnesses can be nervous about retribution. That is an understandable (but often misguided) fear and one that should be discussed with police and Crown Prosecutors.

Sometimes, though, people are hesitant to be witnesses for other reasons, such as selfishness or carelessness. I’ll give you an example…

For some context, witness interviewing and preparation is a big part of my job. My initial witness interviews typically take around 15 minutes to complete. My questions are not hard or technical; I merely ask about someone’s observations or memories of an event, such as a car crash. If someone cannot remember something, then that’s perfectly fine – I don’t want someone “filling in the blanks” with false memories. And I appreciate that people have busy lives, so I often stay late in the office to contact witnesses (after the witness has finished work).

Now, in this example, my client slipped on some ice and suffered some injuries. Immediately after the fall, someone came upon my client to assist. Obviously, this person was a great position to comment on what the ground looked like when my client fell.

So, I call the witness. And, frustration ensued…

I asked, “Was the ground coated with ice or snow?” I asked, “Was the ground difficult to stand on?” After a few moments, the witness said, “This is why people don’t want to help other people”. That was VERY disappointing to hear…

Now, I am confident that the witness was having an “off day”, as they later provided helpful and useful information for my client.

Fortunately, this sort of situation is the exception, rather than the rule. I have conducted hundreds of witness interviews and I struggle to think of more than one or two uncooperative witnesses.

The reason I may sound so frustrated with uncooperative witnesses is because witnesses are CRUCIAL: they MAKE or BREAK cases. Think about it: if witnesses don’t come forward to describe an event, justice can easily be lost.

So, here’s a tip: if you are involved in an altercation, whether it be a landlord/tenant disagreement, a car crash, a fight, or a dispute involving your work, be sure to get the names/contact information of witnesses who can comment on what they saw or heard. It can make the WORLD of a difference…

And, if someone asks you to be a witness for their case, please take the time to help out. If you do, you would have just played a very important and crucial role in someone else’s plight for justice. And, at the very least, it’s good karma.

And now you know.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on May 7, 2013: Witnesses are crucial in lawsuits.

Seeing dead people (and lawsuits)

In your time on Earth, you have probably witnessed some horrific sites and scenes. Hopefully, those scenes didn’t leave you with any psychological scars. But, maybe they did. If they did, you might be able to start a lawsuit.

I’ll back up…

 

Have you ever driven by a car crash? You probably have. You’ve probably even driven by a car crash in which someone was killed. If you did, though, you probably didn’t see any blood or anything like that. Ambulance and other emergency crews had probably already arrived (and quarantined the shocking bits).

But, let’s imagine that that didn’t happen. Let’s imagine that you saw something horrific.

Here’s an example: you are driving on Okanagan Lake’s floating bridge and, when doing so, you see a school bus, full of children, get in an awful crash. Many of the children are significantly injured and some of them are killed…and you see this. You actually see their final, struggling moments of life.

Or, here’s another example: you are a spectator at a car race and, while there, you witness a horrific car crash…and the horrific and gruesome death of one of the drivers.

Quite obviously, these are horrific scenes. It isn’t hard to imagine that you would suffer some significant mental scars from witnessing these scenes. Maybe you would suffer depression? Anxiety? Who knows…

If you end up suffering a psychological injury as a result of witnessing something horrific, you MIGHT be able to sue (to recover your losses). The key word: MIGHT.

Here’s the law: if you suffer psychological injury as a result of witnessing a shocking and horrific event, then you MAY be entitled to recover your losses, which includes your medical expenses and an award for pain and suffering.

This type of legal claim is referred to as a NERVOUS SHOCK claim.

The shocking event must have been caused by the negligence of another person, like a speeding driver. And, in order to recover, you must have been present for the event, or its immediate aftermath. So, in other words, it is VERY unlikely that you could successfully sue someone if you happen to see something horrific on television.

Keep in mind, though, that the psychological injuries must be serious and prolonged. Quite obviously, they must be worse than ordinary annoyances, anxieties, or fears (that we all experience in our everyday lives).

These claims have a lot of nuances and are complicated. They are not easy to win.

Here is a recent example of an unsuccessful claim: Mustapha v. Culligan of Canada Ltd., 2008 SCC 17.

Mr. Mustapha saw a dead fly in an unopened jug of water supplied by Culligan. Mr. Mustapha and his family had consumed Culligan’s water for the past 15 years (but did not drink the “fly water”). Mr. Mustapha became obsessed about what he had seen and was concerned about the health implications on his family (for drinking the water in the past). Mr. Mustapha was later diagnosed with major depressive disorder with associated phobia and anxiety. In the end, Mr. Mustapha’s claim failed because his reaction to the dead fly was very unusual (and a typical person would not have reacted the same way).

Here’s some advice: next time you pass by a serious car crash or other horrific scene or site, avert your eyes down – it’s a lot easier than starting a lawsuit.

And now you know.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on February 26, 2013: Seeing-dead-people-and-lawsuits.

Hit and runs: know your rights

A short time ago, I wrote a column giving you some tips about what to do after being in a car crash. Those tips included:

  1. taking photographs of the crash;
  2. getting witness names and contact information; and
  3. getting the contact information of the other drivers involved in the crash.

BUT, what happens if you can’t get the contact information of the driver who caused the crash? What happens if you suffered injuries and the at-fault driver “just drove away”? In other words, what if you are involved in a “HIT AND RUN”?

Well, this is the subject of this week’s column.

 

Here is the law: if you suffer some injuries at the hands of an unidentified motorist, then you may be entitled to some money. “Money” can include an award for “pain and suffering”, for medical treatment, and/or for loss of income. See section 24 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c 231.

So, how does this work? Well, you obviously can’t directly sue the driver who caused the crash (because they fled the scene, right?). But, you can sue ICBC (so you are not totally out of luck).

But, in order to actually get some money from ICBC, you have to jump over several hurdles.

Among those hurdles, you have to show that you don’t know (and can’t get) the identity of the driver/owner of the other vehicle. This is typically the hardest hurdle to jump over…

So, what does this mean? Well, at a crash scene, you need to do your best to learn the identity of the other driver.

But, let’s assume that the other driver flees the scene right away or you were too injured to get the information. Well, if that occurs, you STILL need to take some serious efforts to learn the identity of the negligent driver. These “efforts” include things like promptly reporting the crash to police and ICBC, canvassing the neighbourhood where the crash occurred, and posting notices/signs at the crash site (pleading for witnesses to come forward). It is common for people to make “insufficient” efforts and have their claims denied.

Another big hurdle is that you need to report the crash to ICBC as soon as you can (and no later than 6 months, at the latest). This allows ICBC to protect itself and “investigate” into the crash, trying to find the identity of the driver.

Another big hurdle is that your credibility needs to be very, VERY good. This sounds easier than it is…

Credibility is a big factor in “hit and run” cases. Often, the only evidence of a “hit and run” is your own words. So, as you can imagine, it is problematic if there are discrepancies in your evidence (i.e. in your statements). For example, if your statement to police is different from your statement to ICBC, then you can have credibility problems. So, be very careful with your words and be very honest.

Now, how much are you entitled to? Well, assuming you can jump over all the hurdles (and there are several), you could receive as much as $200,000.00 for your losses. This may sound like a HUGE amount; but, it may not be (depending on your injuries)…

Lastly, if you are injured in a “hit and run”, I recommend getting some legal advice. There are many hurdles to jump over. And, if you miss one, you could be very sorry later.

And now you know.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on February 12, 2013: Hit and runs: know your rights.

You’re worth more alive than dead

I had someone ask me last week, “What is the family of a car crash victim (who dies in the crash) entitled to?” That was a great question and is the topic of this week’s column.

 

To start, you probably know that if you are INJURED in a car crash, you have a right to sue the driver who caused the crash. In the lawsuit, you are entitled to money (i.e. compensation for your losses).

Generally, injured car crash victims are entitled to an award for ‘pain and suffering’ and an award for a loss of income (if the victim loses shifts or his/her job). The injured victim is also entitled to an award for medical treatment, which can include medical treatment for the rest of the person’s life. Sounds fair, right?

Well, the situation is MUCH different if you are killed in a crash (rather than just injured).

If you are killed in a car crash, you obviously cannot sue for your losses (because you’re dead). But, some of your family members can: only your parents, children, or spouse can sue the driver.

Now, you are probably thinking, “What can you sue the driver for?” Well, you’ll probably guess that your family could receive money for their ‘pain and suffering’ (for losing you). If you thought that, though, you’d be wrong.

After you die in a car crash, the resulting lawsuit is controlled by the Family Compensation Act , R.S.B.C. 1996, c. 126. And, in these types of lawsuits, your family can ONLY get compensation for their FINANCIAL loss resulting from your death. That means that there CANNOT be an award for ‘pain and suffering’.

I’ll explain…

Here is an example: You are 40 years old. You have a husband and two children. Your family depends on your income (as your husband is a ‘stay-at-home dad’). One day, on your way to work, you die in a car crash. As a result, your husband and children sue the offending driver (who caused your death). From the lawsuit, they are basically only able to get the money (from the offending driver) that keeps them living the same lifestyle that they were living before your death. In deciding how much money to award, the court looks at how much financial support you provided to your family. It is just a math question. There is no award for loss of love/companionship or for ‘pain and suffering’.

Seem unfair? Well, it is. Here is an example to show how unfair it is…

You are 70 years old. You have a husband and two children. Your children are grown up and have left home. You retired five years ago with enough savings to retire comfortably with your partner. One Tuesday, you are killed in a car crash. As a result of your death, your family suffers zero financial loss from your death. As a result, your family would likely receive NOTHING in a lawsuit against the driver who caused your death.

This same situation is applicable to children: if a child (who is killed in a car crash) contributed nothing (financially) to the family, then the family is likely to receive NOTHING in a lawsuit against the driver who killed the child. On the flip side, when a child or an elderly person is injured (and not killed), they are entitled to ‘pain and suffering’ and potentially a bunch of other money.

Clearly, A LOT of people are worth more alive than dead…

Fortunately, the law may change in the future. Currently, there is a group, the Wrongful Death Law Reform Group, that is working to change this current situation in the law. Among their efforts, they are trying to introduce a new law: the Wrongful Death Accountability Act. This law would allow for fair compensation for deceased car crash victims. You can read more about the group’s efforts to change the law here: Wrongful Death Reform Group.

Drive safe…

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on January 29, 2013: You’re worth more alive than dead.

Wear seatbelt or lose (big time!)

This is a column that everyone should read…

Car crashes are way TOO common. A crash happens in Kelowna every one hour, which is completely ridiculous.

As a result of these car crashes, people often suffer injuries (and losses), which can lead to lawsuits to recover those losses in court. These losses can include lost shifts at work or the loss of a job (from those injuries). Losses can also include expenses paid for medical treatment and an award for “pain and suffering”. Most people know this…

What most people don’t know is that the injured party can be held responsible for their OWN injuries, even if they DIDN’T cause the car crash! I’ll explain…

Have you ever not worn your seatbelt while driving?

 

If you don’t wear your seatbelt, you could get a $167.00 fine (section 220 of the Motor Vehicle Act). That ticket is NOTHING though, compared to the losses you could suffer if you are injured in a crash when not wearing your seatbelt…

Here is the law: whether you are a passenger or a driver of a vehicle, you have a duty to take care of your own safety. That includes wearing your seatbelt. If you don’t wear your seatbelt then you won’t get as much money from your lawsuit.

Here’s an illustration: you are stopped in your car at a traffic light and you are rear-ended from behind. Clearly, the crash isn’t your fault. At the time of the crash, you are NOT wearing your seatbelt. As a result of the crash, you suffer some whiplash injuries, causing you to miss several shifts at work and limiting your ability to do housework and play sports. You decide to sue the driver who rear-ended you and you go to trial. At trial, the judge says that you are entitled to $50,000.00 for all of your losses. BUT, the judge also says that, because you weren’t wearing your seatbelt, you are 25% responsible for your injuries. As a result, your award (of $50.000.00) is reduced by 25%, leaving you with $37,500.00.

This concept of being found partly responsible for your own injuries is referred to (in legal circles) as being ‘contributorily negligent’. And, if you ‘contribute’ to your own harm, then your ‘award’ is reduced by the amount that you are found to be at fault. See section 1 of the Negligence Act.

This situation commonly pops-up in seatbelt cases. And, you should also know that it is common for people to be found 25% responsible for their car crash injuries when they weren’t wearing their seatbelts.

Obviously, a 25% reduction (or more!) can result in a HUGE loss to you.

So, don’t be stupid: buckle up.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on January 22, 2013: Wear seatbelt or lose (big-time!).

The scary thing about jury trials

When going to court, the thought of a jury can be terrifying (even to the lawyers). They are completely unpredictable, but are still one of the best ways to settle disputes.

There is a lot of public confusion around juries, so this column is intended to shed some light.

To start, a jury is a group of people who are gathered in court to listen to each side in a dispute/trial and then make a decision. Throughout the trial, a judge gives instructions to the jury on the appropriate law.

The process of using juries is very old, dating back to ancient tribal cultures when communities used several honourable community members to judge another person’s actions (and decide their fate).

Jury trials are not common. Trials are typically heard in front of judges alone. Juries will typically occur in serious criminal matters when someone stands to go to trial for five years or more. Juries can also occur in civil cases, too, such as in personal injury cases. But, again, juries are rare.

In civil cases, a jury is composed of eight people. In criminal trials, a jury is composed of twelve people.

After coming to a decision, a jury does not have to give reasons for their decision and it is against the rules to disclose what goes on in jury deliberations.

So, who can be on a jury? Well, not everyone: see section 3 of the Jury Act.

To start, people who work in the justice system are excluded from being on a jury, which includes lawyers, police, judges, and correctional officers. Politicians are excluded, too; MPs and MLAs cannot serve on a jury.

Also, people who are under 19, who are not Canadian citizens, who are not residents of B.C., and who have been convicted (or are currently charged) with a Criminal Code or drug offence cannot be on a jury.

Even if you meet the basic requirements to be on a jury, it does not guarantee that you’ll sit on a jury. Before trial, lawyers go through a selection process with potential jurors to ensure that the jury is fair (particularly for their client).

Juries have tremendous power: they do not have to follow the rules. I’ll explain…

While instructed by a judge about the law, the jury does not have to follow the law, which includes laws made by judges (i.e. common law) and laws made by politicians (i.e. legislation). This allows juries to decide cases where the law conflicts with justice.

Here is an example of a jury refusing to apply the law:

In the 1970s, Dr. Henry Morgentaler performed abortions that did not fit within the narrow exceptions allowing abortion (during that time). In the 1970s, Dr. Morgentaler was tried three times for defying the anti-abortion law. Clearly, he was guilty of the offences. But, the jury found that the anti-abortion law was unjust and took the law into their hands, finding Dr. Morgentaler ‘not guilty’ each time.

When juries refuse to enforce a law that they think is unfair (and render a different verdict not supported in law), it is referred to as ‘jury nullification’.

Clearly, juries are able to base their judgments on emotion, rather than rational or logical argument. This isn’t always a good thing…

In America, there was an analysis looking at racism on juries. It was found that, in serious criminal cases, juries were more likely to convict black defendants than white defendants. It was also found that having a jury member with a different racial background often eliminated individual prejudices (and eliminated the gap in conviction rates among different races).

While there can be problems, juries should represent the community and will likely make judgments that are in accordance with community values (and the law).

And now you know.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on December 11, 2012: The scary thing about jury trials.

Risks of posting comments on internet

The Internet has given everyone a voice – whether on Facebook, in a chat room, or in a forum. This is not always a good thing…

There are a few types of online posters.

Some posters try to make intelligent comments and conversation. Others post online for therapy, telling the world their every thought (with little filter). Others are more interested in ‘stirring the pot’, simply trying to irritate and annoy other people by posting inflammatory, threatening, and off-topic comments. These people are referred to as ‘trolls’. Most trolls are harmless (and are likely children).

Whatever your intentions when posting online, it is important to know that the worst thing that can happen to you is not a ‘slap on the wrist’ from the forum or website moderator/administrator. That couldn’t be further from the truth. Believe it or not, there can be legal consequences.

To start, there can be criminal consequences when posting comments online.

If you have viewed a thread or visited a chat room, you have probably seen posters act completely ridiculous with each other, even threatening each other. I have seen comments like, “You better hope that we never meet in person because you will be very sorry”. This type of comment could lead to a criminal charge. For more information, you can review section 264 (criminal harassment) and section 264.1 (uttering threats) of the Criminal Code.

While criminal penalties can be bad, civil (i.e. financial) penalties can be even worse. Depending on the amount of money that you could be forced to pay, you could be wishing that you had been taken to criminal court…

A common lawsuit made against Internet posters is for defamation of character. A few weeks ago, I wrote about defamation: Sued for spreading rumours? For easy reference, a defamation lawsuit follows when a person makes a communication (written or spoken) about another person/organization that hurts the reputation of that person/organization.

And for your information, just because a poster is anonymous in his/her postings does not mean that he/she is immune from liability. People’s real names can and will be located from their ISP (internet service provider). Hiding your name is ineffective.

To illustrate that posters should be careful, consider the following case: Uppal v Diler, [2012] O. J. No. 2713. In this case, the Ontario Superior Court of Justice (Small Claims Court) awarded $22,000 for a plaintiff dentist against the dentist’s former patient. The former patient had sent defamatory emails, uploaded postings on YouTube, and made statements on the website for the Association of Dentists (about the dentist). The Court held that the former patient was deliberately campaigning to harass the dentist and smear his reputation. Interestingly, the Court said that it would have awarded $45,000.00, but the dentist did not seek this amount in his claim.

Also, for your information, websites hosting threads/forums need to be careful, too, in ensuring that defamatory comments are not posted on their websites. If defamatory comments are present on a website (about a company or a person), that website may receive demand letters (from that company or person), requesting that the defamatory comments be removed. It may wise to conform to such letters; while unpopular, it may be financially-wise.

Outside of civil and criminal consequences, your postings can haunt you in other ways (so be careful).

For instance, there are numerous examples of people being fired for posting about their employer. Remember Mark Jen? He was fired from Google after 11 days for posting on his blog about Google, which included comparing Google to his former employer, Microsoft.

Also consider that in personal injury cases, it is not uncommon for ICBC to rely on photos that motor vehicle crash victims post on Facebook. These photographs, of course, show the victim smiling, which ICBC argues is indicative that the victim is not ‘that hurt’ (because people who have soft-tissue injuries never smile, right?). As silly as it may seem to rely on Facebook photos, it happens.

The Quebec Superior Court said it best in Laforest c. Collins, 2012 QCCS 3078:

“The Web has become the most powerful and frequently used medium of communication on earth. It permits wars to be halted quickly, criminals to be quickly captured. Teaching has no limit. Communication can be personal as well as impersonal. The Web can make anyone a celebrity in a few minutes. It can tarnish or destroy a reputation with one click.”

Finally, outside of the legal consequences, Internet posters should be respectful in their posts. It’s like going to a party: just because there isn’t a law that says you should be respectful and considerate, it doesn’t mean that you shouldn’t be.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on November 27, 2012: Risks of posting comments on internet.