BC Court of Appeal Rejects ICBC’s Attempt to Remove Client’s Website

Posted on by Mussio Goodman

24 hours Vancouver Recently Reported on the Mussio Goodman Court Success

As reported by 24 Hours Vancouver, we are pleased to announce that ICBC has lost for the second time in trying to convince our Court that the website belonging to Wes Mussio’s wife (icbcadvice.com) was infringing on ICBC’s trademark.

In 2012, the BC Supreme Court ruled in favour of Mussio; however, ICBC appealed the decision to the BC Court of Appeal.

ICBC’s primary argument was that the use of “ICBC” in a website domain name by a personal injury lawyer was misleading and in breach of ICBC’s intellectual property rights. In particular, ICBC argued that the average consumer would likely believe that ICBC itself was offering advice on its business, rather than an independent entity.

The BC Court of Appeal disagreed and dismissed the appeal as follows:

[37]         I am unable to accept this argument as it fails to give the “relevant consumer”, i.e., an Internet user, credit for even the most basic understanding of the function of a domain name.  Even though there is some resemblance between ICBCadvice.com and ICBC’s family of marks, the average Internet user with an imperfect recollection of ICBC’s marks would not likely be mistaken by the domain name.  They understand, for example, that a domain name which, in part, contains the name of a business or its acronym will not necessarily be affiliated with or endorsed by that business and may, instead, be the subject matter of the website or entirely unrelated to that business.  As well, they understand that it is necessary to view a website to determine whose site it is.

[39]         As indicated above, I am unable to accept that the average Internet user does not appreciate that domain names—which are limited to short combinations of alphanumeric characters—are often merely descriptive of the subject matter of the website to which the domain name resolves, rather than indicating affiliation, source, or endorsement.  Put otherwise, a person who conducted a search—using, for example, the terms “ICBC” and “advice”—which returned ICBCadvice.com in its list of results would not, based solely on observing that domain name, mistakenly believe that the “advice” referred to is provided or endorsed by ICBC.  Neither would they, as a matter of first impression, be mistaken by the fact that the domain name starts with “ICBC”.  The most that person would conclude is that the website likely had something to do with the corporation.

[40]         In the result, I agree with the trial judge that the website ICBCadvice.com and its related domain names do not contravene ss. 9 and 11 of the Trade-marks Act.

Wes Mussio, who represented his wife in both the Supreme Court and Court of Appeal, is quoted by 24 Hours Vancouver as saying that there’s a sizable list of domain names with the letters “ICBC” in them, such as icbctips.ca or icbc-claims.com, but “they never went after any of them.”

Mussio said his wife created the website in 2006 to share information from motor vehicle injury lawyers, and to refer potential clients to a list of lawyers on the site.

“She thought it would be a good idea to retain some lawyers, including me, to write articles and put up a public service website so people are better informed. At the time it was done, there weren’t a lot of websites with information back in 2006,” he said.

The website also offers a book — earlier named ICBC Claim Guide, and later changed to ICBCadvice Claim Guide. An online version of the book is now available.

Court Rejects ICBC’s “Common Sense” Injury Analysis

Posted on by Mussio Goodman

Court Sides with Mussio Goodman for Injury Analysis

Sometimes moderate or severe injuries can result from a relatively minor collision. In these cases, ICBC typically takes a hard line approach, arguing “common sense” dictates that a minor collision cannot result in anything but a minor injury. Unfortunately for ICBC, the laws of British Columbia and the laws of physics state otherwise.

Vehicle manufacturers design modern cars to crumple on impact. They do this in order to absorb the force that is being transferred from one body to another. Therefore, if there is more damage on impact, less force is being transferred to an occupant and more to the vehicle. However, if there is little damage to a vehicle, it does not necessarily mean that the impact was insignificant. A possible explanation is that the force from the impact was transferred elsewhere (i.e. to the occupants of a vehicle).

In Dunne v. Sharma, our court recently confirmed that there is no presumption in law that low velocity impact collisions cannot cause significant injury to a claimant. In Dunne, ICBC tried to use the “common sense” approach that a minor accident cannot cause a moderate to severe injury. The Court rejected ICBC’s argument as follows:

[90]         Dealing first with the low velocity and minimal material damage aspect, I note that the defendants have tendered a report prepared by an engineer with expertise in the field of accident reconstruction. The essence of his opinion is that in each of the subject collisions, the velocity change experience by the plaintiff’s vehicle was probably less than about 12 km. per hour. The photographs contained in his report also demonstrate that the damage done to the cars by the collision was quite modest.

[91]         I appreciate that to have to been the case and I accept that common sense might generally dictate that a minor collision would not be expected to result in significant injuries. However, there is simply no basis upon which I am able to extrapolate the information concerning the velocity of the collision to a conclusion that the plaintiff’s injuries must therefore necessarily be of a certain type and degree. As has been judicially observed in a multitude of cases, the court cannot conclude that because the impact of the collision was relatively minor, then any resulting injuries must necessarily be minor as well. Justice Thackeray noted in Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236, 38 A.C.W.S. (3d) 924 (S.C.):

Significant injuries can be caused by the most casual of slips and falls. Conversely, accidents causing extensive property damage may leave those involved unscathed. The presence and extent of injuries are to be determined on the basis of evidence given in court. Objectivity is thus preserved and the public does not have to concern itself with extraneous philosophies that some would impose on the judicial process.

Our Court Confirms No Double Standard for Cyclists

Posted on by Mussio Goodman

Court Confirm That Bikes Can Be At Fault For Accidents, Like Cars

Looking around the city during our recent spate of sunny weather, it is nice to see the numerous bike lanes in Vancouver being put to some use. The City of Vancouver installed these bike lanes to protect cyclists against accidents, so they should take advantage of them and ride in the designated areas whenever possible.

Of course, there are times when a cyclist must share the road with motor vehicles as well. In these cases, many believe that cyclists should not be held to the same standard of care as motor vehicle drivers, because it is the latter group who are more vulnerable.

However, the law holds a different view.

The case of Miles v Kumar 2013 BCSC 1688 provides a good example of how cyclists are held to the same standard of care on the road. The Plaintiff was cycling on Grandview Highway when he made a lane change in front of a vehicle driven by the Defendant. The lane change was careless, despite the fact that the Plaintiff was on a bicycle and the Defendant was in a car. Mr. Justice Bernard made the following conclusions:

[62] In summary, with due regard for all the foregoing, I make the following determinations: (a) that as Ms Kumar travelled in the left lane to the point of the collision, she enjoyed the right of way; (b) that the evidence does not reasonably support a finding that Ms Kumar was, at the time, driving without due care and attention, or without reasonable consideration for other persons using the highway, or at a speed that was excessive to the conditions; (c) that when Mr. Miles entered the left lane in front of Ms Kumar his bicycle was servient to Ms Kumar’s car; and, (d) that when Mr. Miles entered the left lane he did so in breach of his statutory duties pursuant to ss. 151(a) and 151(c) of the MV Act.

[63] In addition to the foregoing, I am also satisfied that there is no evidence upon which I could reasonably conclude: (a) that Ms Kumar ought to have known that Mr. Miles would disregard her right of way; or, (b) that there was sufficient opportunity for a reasonably careful and skilled driver in the position of Ms Kumar to avoid colliding with Mr. Miles (see Walker v. Brownlee, supra).

The bottom line is that a careless lane change is a careless lane change, whether you are operating a bicycle or a motor vehicle. This is true for any other rule of the road. Needless to say, the cyclist will suffer the brunt of any collision with a car, regardless of fault. However, the law does not discriminate; even if a bicyclist is seriously injured in an accident that was their fault, they will have no legal recourse.

For this reason, cyclists need to be remain particularly vigilant of their surroundings on public roads.

Specific safety tips and regulations for cyclists can be found here.

The Importance of Keeping Business Records For a Wage Loss ICBC Claim

Posted on by Mussio Goodman

Keeping Records is Vital for your ICBC Claim Process

Many of our clients are self-employed labourers performing contract work. In these cases, when their injuries are affecting their ability to earn a living, we always stress the importance of creating a paper trail in order to prove their resulting wage loss.

For example, if a claimant has to turn down a job opportunity, he should confirm in writing with the would-be employer what the opportunity was, and how much it would pay.

In cases where an injured subcontractor is forced to hire extra workers to perform the labour he would have otherwise done himself, it is important to maintain invoices or receipts so those expenses may be considered as part of the ICBC claim.

In the absence of these records, and especially where there is a poor practice of record keeping prior to the accident, the Court is hesitant to fully compensate a claimant for the losses claimed.

An example of this can be found in the reasons of Musgrove v. Elliot, 2013 BCSC 1707. In that case, the injured Plaintiff was self-employed as a builder of residential decks and fences. Since his injuries impacted his ability to work, he was forced to rely on labourers to do the work in his stead. While the Court accepted his claim in principle, it awarded only a fraction of the damages sought due to a lack of corroborating records:

[56] In late 2007 Mr. Musgrove moved to the Victoria area and began to establish himself in his own business as a fence and deck builder. He had perhaps 10 months to build that business before the first of his two accidents, and in that time he kept lamentably few records of his earnings or expenses.

[57] There is thus little reliable evidence of what Mr. Musgrove actually earned before the first accident, and evidence of actual earnings is usually the most reliable basis on which to assess damages for income losses claimed as a result of an accident.

[58] Mr. Musgrove’s poor record keeping habits continued after the accidents, leaving little upon which to base a confident assessment of what he has earned since the first accident, or what he has paid out to others to do work he says he could and should have been able to do himself but for his injuries…

[72] I am satisfied that as a result of the injuries he suffered in the accidents, Mr. Musgrove had to hire others to do work that he would have done himself had he not been injured. This represents a loss to Mr. Musgrove for which he should be compensated.

[73] Mr. Musgrove must accept responsibility for the consequences of his poor or non-existent records. One such consequence may be an award lower than it might have been had he kept proper records. In all of the circumstances, I assess Mr. Musgrove’s loss of earning capacity at $20,000 from the time of the accident to trial.

Written by Wes Mussio of Mussio Goodman Law Group

Interest on Disbursements: A Warning to Claimants

Posted on by Mussio Goodman

What You Need to Know About Interest on Disbursement on ICBC Claim Cases

In order to fight for your right to compensation with ICBC, lawyers must spend money on a variety of necessary services such as investigation, doctor’s reports, photocopies and court fees. These expenses are known as disbursements.

When you hire a lawyer for your ICBC car accident, you are typically charged an interest rate on these disbursements. This is to facilitate financing your case, as most law firms require a loan or a line of credit from a lending institution to operate their business.

Normally, ICBC will be forced to pay the interest charge because it is associated with the the advancement of a claimant’s case. However, many lawyers charge very high interest rates (ie. over 10-15% per year. As a result, ICBC will resist paying those charges when the case is concluded).

In the recent case of Phippen v. Hampton, the claimant was injured in a car accident and retained a law firm. Upon signing the fee agreement, she agreed to pay 15% on disbursements since the lawyer was using a financial lender to finance the personal injury claim. When the lawyer tried to get ICBC to pay for the interest charges, ICBC refused. The Supreme Court of British Columbia determined that 15% was unreasonable in the circumstances and substituted a lower rate.

In essence, the court confirmed that ICBC is not forced to pay interest that is too high, but only reasonable interest on disbursements. In practice, a reasonable rate is usually between 6-8%.

The decision is good news for all claimants. It confirms that the interest on disbursements must be paid for by ICBC, and sets a key precedent as to what is a reasonable rate. Lawyers that attempt to charge over 8% will likely be confronted with ICBC’s refusal to pay those charges when the claim is finished.

The end result is that the claimant may be stuck with paying the remainder of any interest that Court has deemed unreasonable. This seemingly small amount can add up, especially for cases of a lengthy duration.

A few percentage points of interest on disbursements can mean a client is left with a lower settlement at the end of the claim. Therefore, it is important to pay attention to interest charges on disbursements when you are thinking of hiring a lawyer.

Mussio Goodman Wins BC Court of Appeal Against ICBC

Posted on by Mussio Goodman

Mussio Goodman Wins BC Court of Appeal Against ICBC for Trying to Deny Injury Compensation

We are pleased to announce that the British Columbia Court of Appeal has ruled that ICBC must compensate for the injuries sustained by our client during a bus ride back from their zip line ride.

As reported by The Vancouver Sun, counsel for our client, Wes Mussio and Eric Goodman, were successful in convincing the Court of Appeal to reverse a decision of the Supreme Court of British Columbia dismissing our client’s case against Ziptrek.

On the day of the accident, our client was returning from a zipline tour in a bus provided by Ziptrek and being driven by a Ziptrek employee. The bus veered off the road, flipped, and fell off a cliff. Our client sustained serious injuries as a result of this accident, including a broken neck. Ziptrek refused to take responsibility for their negligence, citing the release signed by our client.

But since this accident happened in a motor vehicle, and British Columbia’s Insurance (Vehicle) Act imposes a universal compulsory insurance regime relating to motor vehicle accidents, ICBC was also brought into the mix. Despite voluntarily signing Ziptrek’s release, could our client still sue Ziptrek and and receive compensation from ICBC under the Insurance (Vehicle) Act?

Mr. Mussio and Mr. Goodman said “yes”, arguing that our client only contemplated signing away her rights relating to injuries occurring on or around the zipline itself and that denying our client her rights under the Insurance (Vehicle) Act was contrary to public policy.

ICBC said “no”, even though they admitted that the accident occurred as a result of the Ziptrek bus driver’s negligence. They argued that our client had completely relinquished her rights to sue by signing Ziptrek`s release.

The British Columbia Supreme Court sided with Ziptrek and ICBC, which opened the door to various types of “mischief” flowing from the ability of private parties to contract out of their rights under the statutory insurance scheme. For instance, bus companies and taxi companies might theoretically be permitted to force customers to sign away their rights as a condition of using their services and thereby avoid liability for their negligence.

The concept of a universal compulsory car insurance regime would therefore be fundamentally undermined, since allowing people to opt out of the regime would render it neither universal nor compulsory.

However, the Court of Appeal reversed this decision, agreeing with Mr. Mussio and Mr. Goodman that it was against public policy to allow people to contract out of the universal and compulsory insurance scheme imposed under the Insurance (Vehicle) Act. As noted by Madam Justice Garson, writing for the majority of the Court of Appeal:

In my view, the ICBC regime is intended as a benefit for the public interest just as is human rights legislation. It would be contrary to the public interest and to a harmonious contextual interpretation of the legislation to allow private parties to contract out of this regime. As such, to the extent that the Release purports to release liability for motor vehicle accidents it is contrary to public policy and is unenforceable.

The Court of Appeal held that Ziptrek and ICBC are liable for our client’s injuries in the bus crash. A trial before the Supreme Court of British Columbia will be scheduled to determine how much those injuries are worth.

There is no word yet as to whether Ziptrek and ICBC intend to appeal this decision to the Supreme Court of Canada.