Diminished Housekeeping Capacity

On November 3, 2006, I gave a presentation at a Medical/Legal conference on the presentation of a chronic pain case to a trial judge. To compliment the presentation, I wrote a paper on the current state of the law in British Columbia regarding Diminished Housekeeping Capacity. Below is an excerpt from the paper I wrote for the course materials.
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The partner who provides domestic services often works far in excess of 40 hours per week in order to provide a "home". Women who work in the home may have given up a career or a type of work which would enable them to improve their earning capacity.

Justice Cory, Supreme Court of Canada
Peter v. Beblow

The idea that a man who primarily works outside the home is entitled to claim for a pecuniary loss for his loss of earning capacity, yet a woman whose capacity to work inside the home is diminished is entitled to nothing for the loss goes against the core principles of Tort Law and promotes continued gender inequality.

It has taken a long time, but courts in Canada are finally recognizing that unpaid labour performed by women inside the home is an essential component to the economic viability of the family unit. Since the Supreme Court of Canada decision in Sorochan v. Sorochan in 1986, courts have been recognizing the contribution of women inside the home in family disputes through principles of unjust enrichment. Unfortunately, gender equality has been slower to develop in Tort Law than it has in Family Law and diminished house keeping capacity does not appear to be pursued as seriously as loss of earning capacity.

The leading case in British Columbia on diminished housekeeping capacity is a decision of a five member panel of the Court of Appeal in Kroeker v. Jansen. Since the decision of Gibbs J.A., for the majority, in Kroeker, the law has taken a few steps in various directions. This paper is intended to review the development of the law relating to diminished housekeeping capacity and highlight some of the strengths and pitfalls of advancing this type of claim.

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Can ICBC force you to hand over your computer?

This is hot topic in British Columbia courts. ICBC frequently brings applications to force injured people to hand over their computers hard drives. They want to know what websites you visit, what documents you keep, and what your e-mails say. I've been seeing these types of appications for the last few years, but it still isn't clear what exactly it is that insurance companies, like ICBC, are trying to find or what exactly it is that looking into your computer will do prove in your case.

One theory for this type of application is that insurance companies are simply trying to wear down the resolve of a plaintiff. When an insurance company video tapes a person at her house or going to the bank and "scrubs" her computer to look into her e-mails or websites she has visited, then that person often feels violated and worried that laundry - clean or dirty - will aired in public. The reality is that many people have a hard time with keeping the strength to stand up for what is right.

The good news for people is that judges on these applications to "scrub" computers are recognizing that privacy concerns are REAL and there ARE boundaries for the long arm of insurances companies.

See Ireland v. Low, 2006 BCSC 393
http://www.courts.gov.bc.ca/Jdb-txt/SC/06/03/2006BCSC0393.htm

Latest Jury Award

Well we finally sorted out the remaining issues from the jury trial. In the end, the award was just over $2.8M for our severely brain injured client. We hope that the jury awards will provide some kind of better existence for her. Hopefully, in the future she will have a care worker to come in to her home and help her write a letter to her parents or take her out for a walk to a garden as she loves flowers.

By law I am supposed to include a warning that past results are not necessarily indicative of future results and the amount recovered in other litigation outcomes will vary according to the facts in individual cases...but the reality is that money is a poor substitute for health and a normal mind...unfortunately it is the best we can do to improve her life.

Debriefing the key steps in a personal injury trial

Because we still have to sort out a few issues, I can't comment on the details of my last jury trial.

I think it is fair, however, to comment generally on many of the issues that a personal injury lawyer in British Columbia must face.

The Jury

If one starts from the fact that most people, including jurors don't like lawyers. More accurately, they don't like a certain perception that they have of lawyers. That is, the reason that people hate lawyers is because a lawyer twists the truth...a lawyer hides the truth...a lawyer will try to convince you that something is red when everyone knows it is green. I mean, if that is what people think that lawyers do, then who blames them for disliking them.

So, the solution to this problem is simply...don't be that "lawyer". Start with a well thought theory of your case and ensure that you select witnesses that fit into your case. Your gut and your heart should be the organs that dictate your conduct in front of a jury. Your brain, as a lawyer in front of a jury, can get you lost. Your brain is only useful if it follows your gut and your heart.

Theory of your Case

When I describe the trial to my clients, I explain that we are pulling information from their life to tell a story...a story about who they were before the accident, how the accident happened, and how the accident has affected their life.

Judges and juries are looking for a story as well and I tell clients that we need to tell a good story...Rocky...Rocky is a good story. It captured the imagination of everyone who saw it and still today, almost 30 years later is a good story. I always am looking for the emotion that is drawn out in Rocky.

Then again, Wall Street was a good story, but we try to stay away from looking like Gordon Gecko (Michael Douglas's character).

BC Court of Appeal

Well, it has been a dog fight for the last few months and I haven't made the time to post.

The most pressing file that I have been working on has taken me to the BC Court of Appeal and into a month long jury trial.

However, it was all worth it as the BC Court of Appeal quoted from my factum (legal argument that you hand up to the judges) and the jury awarded our client enough to help her pay for her care needs into the future.

I'm thinking of doing a de-briefing analysis to outline the work it took to reach this success so that I can learn from it in the future.

I'm not sure if the link above is working so here is the link to the judgment.

http://www.courts.gov.bc.ca/Jdb-txt/CA/06/00/2006BCCA0079.htm

 

Provincial Tax on Legal Services

There has been quite a bit of action this year on the topic of taxes on legal services. In a case called Christie, the BC Supreme court found that the tax of legal services for people under a certain annual income ($28,000 - however there is debate whether that is increasing to $32,000) is unconstitutional as it act as a barrier to access to the judicial system.

The government has appealed the decision, however, in the mean time has taken the position that any award that is made should be counted in calculating the "income" of the individual. This created an injustice as people who have the money pay a lawyer by the hour would not have to pay the tax, however, people too poor to pay a lawyer by the hour, but rather pay the lawyer out of the settlement would be paying the tax.

Recently, in the Muira case, the court found that the settlement funds should not be considered in calculating annual income.

To date, there has been no direction from the government or the law society of British Columbia.

The cases can be found at:

Muira
http://www.courts.gov.bc.ca/Jdb-txt/SC/05/15/2005BCSC1569.htm

Christie
http://www.courts.gov.bc.ca/Jdb-txt/SC/05/01/2005BCSC0122err1.htm