Vancouver Sun: Case of fatal hang-gliding mishap shows insufficiency of civil wrongful-death law

As seen in Vancouver Sun by Ian Mulgrew, 29th April 2014.

Inadequate remedies: In B.C., family can only hope to be reimbursed for funeral expenses

Lenami Godinez AvilaThe family of a 28-year-old Mexican woman killed while tandem hang-gliding is suing the instructor who was given five months in jail for causing her death, as well as the sport’s governing associations.

The organizations are alleged to be endangering the public by not ensuring that launch and flying sites are chosen, constructed and operated in a safe manner.

The plaintiffs also claim the groups have demonstrated a “wanton and callous disregard for public safety” by “failing to ensure the public is advised that the inherently dangerous activity of hang gliding is being undertaken without government regulation, supervision and/or oversight.”

They are accused of “mandating and/or promoting and/or encouraging hang glider operators to conceal and/or not openly discuss hang gliding incidents that result in injury and/or death…”

Burnaby lawyer Don Renaud filed the action in B.C. Supreme Court on Friday, although a provincial law governing wrongful death suits precludes large financial rewards.

He said father Miguel Angles Godinez Villages and mother Herlinda Avila Ramirez are interested in accountability for the death of their daughter, Lenami Godinez Avila, not a windfall settlement.

“The inadequacies of the current wrongful-death law mean the family can only get funeral expenses,” Renaud explained.

Based on an archaic 1846 British law, the woefully inadequate B.C. Family Compensation Act provides little recourse for the wrongful loss of a loved one unless a main breadwinner is killed.

“However,” Renaud pointed out, “if we can get the B.C. Court of Appeal to follow a 2013 decision of the Alberta Court of Appeal, the door will open for a shot at punitive damages. Beyond that, the public should know the dismal truth about our wrongful-death laws.”

The suit names William Jonathan Orders, business associate Shaun Wallace, their company Hurlstone Ventures Inc. (D.B.A. Vancouver Hang Gliding), the Hang Gliding and Paragliding Association of Canada, the B.C. Hang Gliding and Paragliding Association, the West Coast Soaring Club, ABC Company, John and Jane Doe.

Orders, 51, pleaded guilty to criminal negligence and was sentenced in February for forgetting to hook the young woman to the glider before the flight on April 28, 2012.

She plummeted 300 meters.

The young woman had lived in Canada for a decade, working for B.C.’s Environment Ministry while studying at the University of B.C.

The fatal flight over the Fraser Valley was meant to be a celebration of her relationship with her boyfriend; instead, it became a tragedy, with her final agonizing minutes captured on digital video.

“Before her death, Lenami Godinez experienced conscious pain, suffering, shock and terror,” the court pleadings state.

“At or about the time of the said fatality, the defendant Orders swallowed the memory card from his video camera affixed to the hang glider, for the purpose of destroying evidence he knew or should have known was capable of incriminating the defendants… in a criminal and/or civil prosecution.”

The memory card and its contents were later recovered.

The pleadings allege the associations and club failed to ensure the proper training, standards, and supervision of commercial hang-glider pilots such as Orders and Wallace.

They compromised public safety, the court documents state, by having an inadequate system for pre-flight inspections and safety checks and by failing to supervise hang-glider operators.

The HPAC is a non-profit corporation based in Vancouver putatively responsible for the training, certification and supervision of hang-gliders to ensure commercial flights are undertaken safely.

The B.C. association is comprised of current members of HPAC and provides launching sites across the province, including the site known as Mount Woodside, where Godinez fell to her death.

The West Coast Soaring Club is also involved in the maintenance of Mount Woodside, and the unknown defendants are individuals who approved flights from the site.

Orders and Wallace were members of all three organizations, the suit says.

The case highlights the problem with wrongful death laws in that there is little financial incentive for anyone to bring a suit since the payoff is negligible.

The government issued a Green Paper in 2007 holding out the potential of reform, but nothing has come of it.

In conjunction with the Wrongful Death Law Reform Group, Renaud has been spearheading the fight for change over the last decade, maintaining that civil litigation like this is in the public interest.

He insists that it is only through such litigation that those who provide these risky services are held liable for their negligence and the public warned.

“No tandem passenger in the United States (which has wrongful death laws that impose large financial penalities) has fallen to her death because she was unclipped,” Renaud said.

“It has happened in British Columbia and New Zealand. Both are weak tort jurisdictions and tiny compared to the USA.”

None of the allegations contained in the pleadings have been proven in court and the defendants have not yet responded to the allegations.

(Click PDF to enlarge original article)



About the BC Wrongful Death Law Reform Society

‘In Their Name’ is the campaign of ‘The BC Wrongful Death Law Reform Society’ – a BC registered non-profit organization comprised of volunteer families who have lost a loved one to wrongful death in BC and were denied access to justice. In response to the biggest human rights issue facing the province today, our goal is to modernize British Columbia’s antiquated wrongful death legislation, which predates confederation (1846). Under current legislation, the value of a human life is measured only by the deceased’s future lost income, so long as they had dependents.

As a result of the province’s antiquated law, access to justice has been denied to the families of the wrongfully killed who do not meet this discriminatory criteria. This has affected especially vulnerable groups, namely children, seniors, the disabled, and anyone without dependents when they are killed by the negligent or intentional acts of another.

BC is presently the last of all the provinces, yet to have undertaken this critical legislative modernization to allow for dignity, value, and protections for all its citizens under the law.

When it’s ‘free’ to kill in BC, wrongdoers are not held accountable. This lack of general deterrence holds the province back in terms of incentivizing innovation of safety measures and protocols to prevent wrongful deaths in the first place.

Here’s How You Can Get Involved…

The Premier of British Columbia, David Eby, is responsible for the modernization of BC’s wrongful death laws. Our Society provided David Eby with the drafted ‘Wrongful Death Accountability Act’ when he was acting as the Attorney General for British Columbia for 6 years between 2017-2022. The new Attorney General, Niki Sharma, also shares responsibility as she is the Minister responsible for the ‘Family Compensation Act’ – the current guiding piece of legislation that the civil courts must follow in cases of wrongful death. Minister Sharma receives feedback from the regional ‘Members of the Legislative Assembly’ (MLAs) and follows orders from the Premier, David Eby, who is ultimately responsible for modernization.

Reform is presently at a standstill, as the BC NDP government does not presently view access to justice for the surviving family members of the wrongfully killed as a priority in this province. This is despite the fact that the families behind our Society have been fighting for modernization for over two decades. And despite the fact that all other provinces, including the Yukon, have already modernized in most cases long ago.

The only way to move this forward is by creating massive public awareness and outcry for legislative modernization. Only under the scrutiny of the public and the media will our politicians be forced to take this necessary, and long overdue action.

How many more people will need to die from the same preventable wrongful actions before our politicians will do their job?

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