From The Jill Bennett Show on CKNW
What are you trying to do as far as the wrongful death laws in this province?
We want to make our province safer, with more accountability accessible to the citizens of BC.
Why has the law not been changed since the 1800s?
It was created in 1846 to protect families when they lost a breadwinner. 174 years later, we have a lot more modern standards for respecting value of life and dignity. Essentially, what we’re seeing here in BC: we have a Crown corporation, ICBC, and we have the BC medical system [The Healthcare Protection Program, an adjunct to the Risk Management Branch of the Ministry of Finance] that perhaps do not want to get in the line of fire or be accountable for the citizens of the province. As we’ve come close to getting this law modernized in the past, ICBC has stepped in and advised the Attorney General’s office that they should not proceed forward with this, even though every other province, even the Yukon territory, has seemed to be able to figure this out and modernize this law.
We have heard from the Attorney General in BC that this is on the radar and something that they are looking at changing. Are we making any progress with the Attorney General’s office?
The only progress that has been made is they are now going on record; they have been sitting on the Wrongful Death Accountability Act since they came into office in 2017, and they’ve done nothing with it. They have no current dedication to reviewing the current Family Compensation Act nor has it been included in Attorney General David Eby’s mandate letter from Premier John Horgan nor have they committed to making a public statement prior to the 2020 election, which we had asked them about. We expect more of a commitment and more of a timeline than saying it will merely be done.
Why hasn’t BC done what other provinces have done as far as updating the law?
The closest we got to modernizing was back in 2011 when MLA Ralph Sultan from West Vancouver put forth a private member’s bill that was a carbon copy of Alberta’s legislation, which is not that great but a vast improvement on what we currently have. Our understanding is that closed door discussions happened between the provincial government at the time with ICBC; ICBC gave them numbers that dissuaded the provincial government from making this modernization. The public does not get to see the numbers in the ICBC report, which has been kept secret, referred to as an “in-camera item”. We think this is extremely unfair to the public, and we deserve to have an open, honest discussion about the impact on the province.
Are you hearing from many people who feel like their loved ones don’t fit this version of the 1846 law of having dependents and an income and aren’t valued?
Yes, we’ve had a flood of stories come in and have a backlog of dozens of stories that our Society is currently working through, and we have to evaluate the merit of the stories. We believe that every family deserves access to justice. It’s for the courts to balance the scales of justice and decide if a wrong actually happened and, as a result of that wrongful act, their loved one was killed. It’s not for politicians to determine, and it’s not for the public to determine; it’s for the legal system to determine. Every family deserves that opportunity.
Submitted by the Public
Which province is the best example of legislation in Canada? And is there a comparison chart?
The truth is, all the provinces still don’t do that great of a job, but BC is by far the worst of the bunch. Here is a video that we made comparing the provinces and discussing what’s missing from our current legislation.
So you have draft legislation ready to go?
The legislation is ready to be tabled and passed effective immediately. See it here on this page.
How does ICBC enter into the picture?
ICBC has actively continued to block all efforts by the public to modernize this legislation since the early 2000s. The crown corporate bureaucrats don’t want the public to discover that ICBC is a bloated bureaucracy with double the workforce as any private insurer of the same customer base size. If they have to adjust their actuary tables, the house of cards may come falling down. Some have argued that this might be the best thing for the citizens of BC so there could be consumer choice, and the politicians might actually represent the interests of the public again, instead of protecting this corrupt zombie institution.
Are there critical/strategic timing opportunities in the legislative schedule for 2021 to get this topic in there?
The only way this legislation will ever be passed is if there is massive public outcry and the politicians are forced to modernize.
What are the steps to get this passed? Is there a specific committee that this has to go through? Which one? Which MLAs are on it?
The Family Compensation Act is the responsibility of the Attorney General, Minister David Eby. However, any one single MLA could table a Private Members Bill as MLA Ralph Sultan did in 2011. The tabling of this Private Members Bill would force a vote at the legislature, and then we could truly see which MLAs support and which oppose modernizing this legislation. This legislation could be passed in the next legislative session, although the politicians are simply stalling because they don’t want to have the government to actually be accountable to the public.
Ultimately, Minister Eby is likely directed by NDP leadership and senior establishment bureaucrats in his decision and policy making. The BC NDP as a party and the provincial government need to recognize the public pressure on their leadership in order for this to be put into motion.
Do professional colleges publish investigation issues and results so their members can read and learn? (e.g. issues examined, findings, re-education of the person responsible, or loss of licence by authority of their professional college)?
Please refer to the College of Physicians and Surgeons of BC website resource on disciplinary actions – have a look at their website to determine this / whether their publication of investigation issues and results is adequate. They publish about 5 doctors per year while they receive about 1,000 complaints per year.
Doctors when they are fined, the fine amounts are for the financial benefit of the College and not the victim.
Overall, while we encourage victims to file complaints with the College, the investigation process, findings, and accountability are largely inadequate with respect to righting the wrong and making the victim whole again.
Are we legally allowed to publicize negligent doctors’ names?
The best way for the public to become aware of the names of individuals involved in alleged wrongdoing is through the litigation process. The court system must remain open to the public. To circumvent this, governments set up investigation theatre (tribunals, Colleges, quality control review panels, hospital appeal boards, etc.). The public never finds out what goes on because it’s outside of the public view. It’s been said that reporters love a courthouse fight because nothing else exposes the truth to the public record.
Without the access to the court system to prove allegations and make them public record, you’re left with few options. You may able to share your experiences with friends and family and perhaps at best post a review on RateMDs.com – which arguably is pretty insignificant with respect to ensuring accountability.
The hospital/health authority did an investigation called a “Patient Safety Incident Report”, but I am not allowed to see it. Why?
Under Section 51 in the BC Evidence Act, medical professionals are provided the freedom to discuss or critique a case or event, without having your thoughts or opinions entered into evidence in any possible legal proceedings. It is meant to ensure that hospitals and health care professionals can constantly review and improve services and procedures, without fear of reprisals.
Unfortunately, as per the BC Evidence Act the patient, or their surviving family members will never be able to see these reports to be able to get down to the truth, or obtain answers. If requested through the Freedom of Information Act you can expect to receive a heavily redacted document.
Please see the section of our website related to ‘wrongful death investigations’ to understand what other government self-investigation avenues may be available to you. These other investigation avenues will allow access to reports under the Freedom of Information Act.
What damages are awarded in other provinces in Canada?
Basically what it comes down to is that if you have a non-economic (aka non-pecuniary) damages claim in Canada, the Supreme Court put a cap of $100,000 on that in the 1970s. In injury cases, with inflation, that is now up to $400,000. This is what the courts in Canada have done so that you don’t have runaway verdicts. That would then apply to any wrongful death claim as well, conceivably. But in addition, there can be punitive or exemplary damages in certain cases. So an example of the biggest punitive damages award by a jury in Canada that was upheld at the Supreme Court level was $1M, in 2001. That was not inclusive of economic damages; it was an add-on. This was not an injury claim, though. It was a case where an insurance company refused to pay out when a family’s house burned down and had baselessly accused them of fraud. The lawyer in that case took it before a jury and the jury awarded $1M in punitive damages in addition to the cost of rebuilding the house. Jury trials are so important and more likely to be a fair assessment of damages since it’s democratically settled.
When Asian children are killed, how have they been able to successfully undertake wrongful death legal actions?
The courts in British Columbia haven’t had much to work with from a legislative perspective for dealing with wrongful death claims in the province for those who do not meet the discriminatory criteria of having both an income and dependents. So judges in the past have been creative and relied upon a legal concept called ‘filial piety’, which is a custom in Asians cultures whereby the children financially support their elderly parents. In certain circumstances, parents from Asian cultures in BC have been able to successfully bring forth wrongful death claims, when their children have been killed, relying on the “pecuniary” or “economic” damages argument that they have been deprived of future financial support. Unfortunately, this approach has not been made available to families from other cultures.
What about the Canadian Charter of Rights and Freedoms in Canada?
It’s virtually impossible to advance a claim under the Charter of Rights and Freedoms because it would clash with workers’ compensation boards and other interveners across Canada. It becomes the aggrieved party against the administrative world.
When it’s FREE to kill someone in British Columbia under our current colonial era legislative framework, arguably the Charter is a worthless document. Human rights cannot exist in British Columbia, unless every person’s life is valued under the law with legislated protections, so if a ‘wrongful’ act causes loss of life, there is actually legal recourse available under provincial legislation.
Is this just another wealth redistribution scheme?
Yes, exactly, let’s redistribute wealth in a court of law from the negligent party who caused a wrongful death in the first place, to the family who has endured grief, injustice, and immeasurable economic hardship as a result.
Is this a make-money project for the Law Society of BC? Or another cause backed by lawyers so they can make money?
No, we’re just a bunch of families fighting to change the law so other families won’t have to endure the burning sense of injustice that we have. We have no affiliation with the Law Society of BC, although, as with any organization, we would welcome and appreciate their support. We are a grassroots organization of volunteer families who have lost a loved one to wrongful death only to realize that unlike all other provinces, our family member had no worth under current BC legislation. We have invested countless hours and thousands of dollars of our own personal money to bring education and awareness to both the public and our MLAs.
Isn’t it bad to sue our public healthcare system?
Physicians are insured by the Canadian Medical Protective Association. They insure Physicians across Canada, including all of the other provinces and Yukon territory, who have already modernized their wrongful death legislation, in many cases long ago. The CMPA has a fund of over 6 billion dollars and collects over $500 million annually from the taxpayers who subsidize this insurance fund. In BC, the taxpayer subsidizes these fees to the tune of over 50%, although we do not have this same access to justice and accountability as all of the other provinces, even though we are arguably already paying for it. Medical malpractice is also incredibly difficult to prove and only the most meritorious cases are ever settled, or result in a court decision in favour of the Claimant. Many senior assisted living and extended care facilities in the province are private. They purchase their own liability insurance from private insurers. Insurance is a business and it’s the duty of the insurer to act as a safety net when something really bad happens, and also to provide incentive to their insured to reduce incidents of negligence and wrongful death in the first place. There isn’t much incentive for policy change when it’s “free” to kill people, leaving no ability to weed out bad apples. We propose that a safer system with deterrent mechanisms, will actually reduce costs on both the province and the families who have been left economically devastated by wrongdoing.
Won’t this just make us as litigious as the US to ensure lawyers make even more money?
First off, the USA is only the 5th most litigious country in the world. Germany, Sweden, Israel, Austria, are all statistically considered more litigious. Further, all of the other provinces in Canada, including the Yukon have already modernized their wrongful death laws, in many cases long ago. Are they considered, or thought of as, litigious jurisdictions?
Having protective legislation under the law for all people, regardless of their socioeconomic status, specifically children, seniors, and the disabled should not be predicated or hinged upon a fear of litigiousness. Do people need to die by wrongful act, families need to suffer this injustice, grief and economic hardship, then more people need to die the same way, since the wrong was never corrected, only to ensure that lawyers shouldn’t make money?
The truth of this matter is that the myth of frivolous lawsuits was invented by astro-turf political organizations like “Citizens Against Lawsuit Abuse”, which were funded by big-tobacco, pharma, insurance companies, and other large corporations to stigmatize standing up for your human rights when you were wrongfully injured or killed.
For anyone interested in the truth about the myth of frivolous lawsuits in the US, here is an illuminating video: