Queen of the North Sinking 

The coastal ferry system on the British Columbia coast is a vital lifeline for west coast communities and a delightful experience for visitors.  One long route is the trip between Prince Rupert and the northern end of Vancouver Island. 

One ferry took its last trip on this route on an overnight voyage.  It was the car ferry Queen of the North.  It sank in Wright Sound after sailing one third of the way.  It had been travelling south through a narrow passage between the mainland and Pitt Island.  The narrow passage was 100 kilometers long and for most of the way was between 500 meters and 1 kilometer wide.  The narrow passage meant that the bridge crew had to pay close attention to navigation for hours on end to keep the vessel away from the shore. 

Once the ship reached Wright Sound there was relief.  There was open water 4 kilometers wide for the ship to follow on its course.  However, there was one important navigation point to follow.  The centre of the main channel of open water veered slightly to the left.  It was necessary to turn the ship slightly to the left. 

The ship entered Wright Sound at 17 knots, nearly full speed.  It continued at that speed without turning for 14 minutes until it hit Gil Island.  The impact was so severe that water rushed quickly into the hull.  The ship sank in 1 hour and 19 minutes. 

After the collision the passengers were called on deck.  The impact affected the frame of at least one cabin door.  The door would not open after repeated pulling on the handle.  Finally with both feet on the wall and pulling, the terrified passenger got the door open.  The ship began to list to one side.  One passenger on deck prepared to climb up the side of the ship in the event that the ship began to roll. 

It was 12:30 in the morning as the passengers and crew assembled on deck in a fine mist.  It was 7 degrees.    Many were not dressed for the cold.  The passengers got into rafts and a lifeboat.  They floated on the water in the darkness as the Queen of the North rose on end, and then, with trapped air exploding its windows outward, sank beneath the water.  A small fleet of power boats arrived from the nearest village of Hartley Bay.  The villagers brought the passengers and crew to their village. 

Two passengers were never found and were presumed dead.  A great number of the passengers experienced psychological injury with lasting symptoms of fear of water.  Many showed symptoms of Post-Traumatic Stress Disorder.  They were easily angered.  There were broken relationships and an attempted suicide.

I had been at work on some class action cases with James Hanson, a lawyer in Surrey.  The plight of the passengers on the Queen of the North looked like something that could be dealt with by way of a class action.  It would spare the passengers the cost of each of them hiring lawyers to claim against BC Ferries.  We represented a passenger and her husband who were moving to Vancouver Island.  All their possessions were on board the ship. 

The case involved both Canadian and international law.  A treaty that Canada had signed called the Athens Convention governed liability and limited the damages that could be paid. 

Our case was certified as a class action.  At judgment Mr. Justice Joyce found that to receive compensation, the psychological injury suffered by the passengers had to rise to the level of a recognizable psychological illness. 

This was a disappointment.  Many of the passengers had several symptoms of PTSD.  But to receive an actual diagnosis of PTSD, it was necessary to have all four of the symptoms listed in the Diagnostic and Statistical Manual of Mental Disorders.  James Hanson and I had flown many of the passengers to Vancouver for treatment and had paid for their expenses and psychiatric assessment. 

The judge reviewed the cases of a number of the passengers to provide the lawyers with guidance for assessing the rest.  He awarded damages. Some passengers got nothing.  The other amounts ranged from $500, to $7,500.  One got $12,000.

A continuing question throughout the case was about what the crew were doing on the bridge during the 14 minutes that the ship sailed straight towards Gil Island.  Fourth officer Karl Lilgert was in command.  He was assisted by Quartermaster Karen Briker.  Both were married but it was known, and they admitted, that they had been having an affair.  Rumours swirled that they had used the open water after leaving the long narrow passageway for a romantic activity. 

The ship was on autopilot.  They were certainly not paying attention to where the ship was going.  Both said that the affair had ended.  However, there were suspicious circumstances.  The departure of another crew member had left Karl Lilgert and Karen Briker alone on the bridge.  Karl Lilgert and Karen Briker were seen together after the sinking. No solid evidence ever came to light to substantiate the rumours. 

I cross examined Karl Lilgert in the class action case.  It was interesting to hear what he said about the position of the ship and the events on board.  I cannot reveal his evidence.

In a separate legal proceeding, Karl Lilgert was charged and convicted with criminal negligence causing death.  He was sentenced to four years in prison.  At the sentencing hearing Madam Justice Stromberg-Stein stated that Mr. Lilgert testified and lied.  She said:

“Whatever occupied Mr. Lilgert’s attention on the bridge that night, it was not the navigation of the vessel.  I do not need to speculate what Mr. Lilgert was doing on the bridge that night.  I know what he was not doing.  He was not doing his job.  He was not navigating a passenger ferry with 101 persons aboard who had entrusted their lives and safety to him.”

Fresh Evidence in the Court of Appeal

My case involved a client who was employed to produce computer software for use in designing roofs.  The specific application was for the large flat roofs of warehouses and industrial plants.  The problem to be solved was that rainwater would collect on the flat roofs.  The weight of the water caused the roofs to sag, creating bigger pools of water.  The increased weight over the long term adversely affected the integrity of the roof.  The software in question allowed the design of multiple, lightweight, low-level pyramids all over the roof.  It was a complicated design process that only a computer could do.  With the addition of the pyramids, the water would flow off the roof.

When my client was dismissed from his employment, he had a claim for wrongful dismissal.  That was complicated when his employer’s companies went bankrupt and his employer went personally bankrupt.  All of the assets of his business were transferred to a trustee in bankruptcy.  My client negotiated with the trustee to purchase the roof design software.  My client now had his own business.  Unfortunately, the previous employer had kept a copy of the software.  He started operating the same business through a company owned by his wife. 

I commenced a legal claim on behalf of my client against the company operating the roof design business.  That company immediately went to court and obtained an injunction against my client to stop him from contacting clients in his business using the roofing software.  It claimed that it was the rightful owner of the software and my client had no rights to it.  I then went to court and showed the bankruptcy, the transfer to the trustee and the purchase from the trustee.  The court removed the injunction and imposed an injunction in favour of my client against the company of the bankrupt’s wife.  It could not use the software. 

Unfortunately, that was not the end of the matter.  There were 21 court appearances as the parties battled it out to control the use of the software.  The defendant moved the software to the United States and continued business there.  The matter was at the Court of Appeal at one point.  The company of the bankrupt’s wife applied for leave to appeal the injunction.  An appeal is not automatic from an order pronounced leading up to trial.  Those orders are called interlocutory orders.  It was necessary to ask permission to appeal an interlocutory order.  The company of the bankrupt’s wife applied to introduce new evidence at the application for leave to appeal.  New evidence is also called fresh evidence. 

The application was heard by Mr. Justice Hinds.  He listened to the application and then asked both lawyers to go away and to research a particular point.  It was three months until we reappeared before Mr. Justice Hinds. 

Following a decision of the Supreme Court of Canada, applications for the introduction of fresh evidence on the hearing of an appeal had been adjourned to the date set for the hearing of the appeal. That gave the panel hearing the appeal, rather than a chambers judge in advance, the task of deciding whether or not the fresh evidence should be admitted. 

The question asked by Mr. Justice Hinds was whether a Court of Appeal justice, sitting in chambers before the date of the appeal, could consider fresh evidence when determining whether to grant or refuse an application for leave to appeal an interlocutory order made by a judge of the Supreme Court.  There was little authority on the point.

After listening to both counsel on the point, Mr. Justice Hinds decided that he could consider the fresh evidence.  This was not a decision to admit the fresh evidence, only to consider it.  After considering the fresh evidence and all of the circumstances, the judge declined to grant leave to appeal. 

There are 16 references to the case in subsequent court proceedings. Gudaitis v. Abacus

ICBC’s No-Fault Insurance Model

No-Fault Model vs. Litigation-based Model

In May 2021, ICBC implemented a new model of auto insurance. Under the old, litigation-based model, a victim of a car accident could sue the driver responsible for the crash. Injured parties could file court claims against responsible drivers and receive compensation for the pain and suffering they experienced. ICBC would usually reach settlements with those victims or pay the victims the amount determined by the courts when those matters went to trial.

Under the new, no-fault insurance model, injured parties can no longer sue the responsible insured driver for their injuries. ICBC will investigate the accident, assess how much each injury has impaired the injured parties, and provide claimants with pre-determined amounts of compensation for the types of injury they have sustained. Compensation is not tailored to the particular effects of the injury on their lives. The legislation that establishes the no-fault system sets out fixed amounts that claimants will be entitled to for each type of injury, regardless of how the injured party is uniquely affected by that injury.

Under the no-fault system, ICBC awards compensation to victims only for injuries they sustained during the accident that is the subject of their claim. Compensation no longer takes into account a victims’ previous injuries and the extent to which the present accident has aggravated pre-existing conditions.

What No-Fault Insurance Covers

Even though car accident victims can no longer seek compensation for their injuries through the courts, the new system expands the range of benefits they receive to address their ongoing needs in recovering from their injuries and returning to their lives.

Income Replacement Benefits

BC residents who are unable to work because of injury in a car accident may be eligible to receive income replacement compensation. These benefits are capped at 90% of your net income, up to a maximum of $119,000 in gross annual income. People whose income exceeds $119,000 can purchase optional Income Top-up coverage to increase the benefits cap.

Benefits recipients cease to be eligible for income replacement benefits once they are:

  • able to do the same job they were doing at the time of the accident;
  • available to work in the same type of employment 6 months after the accident;
  • obtain employment that pays as much as or more than their employment at the time of the accident;
  • eligible for a retirement income benefit.

Medical and Rehabilitation Costs

Under the no-fault system, ICBC provides Enhanced Accident Benefits to people injured in car accidents. These benefits entitle injured parties to payment for or reimbursement of necessary and reasonable medical and rehabilitation-related treatments. These can include physiotherapy, registered massage therapy, chiropractic care, clinical counselling, kinesiology. They may also include treatment such as dental care, prescription medication, home support, home and vehicle modifications, and alternative treatments.

ICBC will review the medical reports and notes of care providers and determine the number of sessions of treatment an injured party will receive, up to 12 weeks of treatment. After that, the injured party will have to provide evidence to ICBC to demonstrate why further treatment will be necessary for their recovery.

Permanent Injuries

People who experience a permanent injury or functional impairment may be entitled to additional types of compensation. These include permanent impairment benefits, recreational benefits and increased personal care benefits. For some permanent injuries, ICBC will provide lump-sum payments. People who incur a “catastrophic injury”, such as quadriplegia, paraplegia, severe brain injuries, amputation or vision loss, will receive the maximum lump sum impairment benefit amount under the Permanent Injury Regulation.

Vehicle Damage

If you are not responsible for the crash, ICBC no-fault insurance will cover the costs of repairing your vehicle damage up to $200,000. This claim will not affect your insurance premiums because you were not responsible for the accident.

At-Fault Drivers

At-fault drivers will not face any consequences for an accident other than increases in their insurance premiums. Their insurance policy will cover compensation and benefits for their own injuries, and they will not face any other financial repercussions for the victims’ injuries.

Challenging ICBC’s Decision on Benefits

If you disagree with ICBC’s decision about your no-fault benefits, you may apply to the Civil Resolution Tribunal for a ruling about what benefits you are entitled to.

If you are concerned about the benefits available to you after an accident, or need help dealing with the complexities of ICBC’s no-fault insurance system, give us a call and we will be happy to assist.

Parole Hearings

Parole Hearings

Parole Eligibility

Inmates who have been convicted of a crime and are serving a prison sentence are eligible for parole once they have served one-third of their sentence. They are eligible for statutory release after they have served two-thirds of the sentence. Any time that inmates have spent in pre-sentence custody will be credited to them, and the one-third and two-thirds proportions will be based on the difference between the length of their sentence and the length of time they spent in pre-sentence custody. An inmate sentenced to 7 years’ imprisonment but who spent 1 year in pre-sentence custody will be eligible for parole after 1/3 of 6 years, or 2 years, and eligible for statutory release after 2/3 of 6 years, or 4 years.

The exception to this is when offenders are convicted of first- or second-degree murder. Offenders convicted of first-degree murder need to serve at least 25 years of their sentence before they are eligible for parole. Those convicted of second-degree murders are eligible once they have served between 10 years and 25 years. Those who receive a life sentence without a minimum period of ineligibility have the right to a parole hearing after 7 years of their sentence.

Some offenders are eligible for other types of release at various stages of their sentence. These include Day Parole, work release, Unescorted Temporary Absences (UTA), and in exceptional cases, Parole-by-Exception.

Parole Board of Canada Hearings

Unlike criminal proceedings, parole hearings do not take place before a judge in a court. Instead, they proceed before a tribunal composed of Parole Board members, and typically take place at the institution where the inmate is serving his or her sentence.

At the hearing, the Board members assess the risk the offender may pose to the public if the Board grants him or her conditional release. The Board members consider whether the risk the offender may present to society if released can be managed in the community. The protection of society is the Board’s overriding consideration in any release decision.

During the hearing, the Board carries out thorough questioning of the offence. Any victims can make victim impact statements. The offender’s lawyer and the parole officer may also make submissions to the Board.

We Represent Individuals in Provincial and Federal Institutions

We conduct parole hearings for offenders convicted of all criminal offences, serving sentences at Provincial and Federal Institutions. We have been successful at securing parole and defending alleged breaches of parole for our clients and ensuring their return into the community. We act for inmates and parolees across BC and Canada who need assistance during their parole hearings. We work with each offender to develop practical and effective release plans, and ensure that they are prepared for the questions of the Board members at their parole hearing. We also provide consultation services to assist those navigating other challenges of the prison system and prison life.

Overview of Fishing Offences and Penalties in BC

Fishing in Canada is regulated by laws designed to protect fish species and natural resources. In British Columbia, people who fish recreationally and commercially are required to hold a valid license for their fishing activities. These licenses are often subject to conditions and restrictions based on species, quantity, times, and designated areas. Violating these conditions by fishing without proper authorization or outside permissible areas or seasons can lead to severe legal consequences.

Common Fishing Offences

Below is a list of the most common types of fishing offences:

1. License Violations

        1. fishing without a valid license;
        2. fishing in violation of license conditions;
        3. failing to carry and produce a valid license;
        4. operating a vessel without properly painted or affixed registration numbers; and
        5. fishing under the authority of a communal license without being a designated person.

        2. Quota Violations

        1. exceeding catch limits or quotas;
        2. possessing fish caught in contravention of regulations; and
        3. possessing fish whose weight or number cannot be readily determined.

        3. Fishing in Prohibited Areas or Times

        1. fishing in prohibited areas; and
        2. fishing in closed waters or during closed seasons.

        4. Gear Violations

        1. using prohibited fishing gear; and
        2. operating improperly marked gear.

        5. Illegal sales and purchases

        1. buying, selling, trading or bartering seafood caught in fishery where sales are not authorized

        6. Habitat Damage

        1. damaging fish habitat through illegal fishing practices

        Penalties for Unauthorized Fishing

        Penalties for unauthorized fishing vary based on the nature and severity of the offense. Some common penalties include:

        1. Monetary Fines. Fines can be substantial, depending on the type of catch and the extent of the violation. Fines for ticketed violations are up to $1,000, while court-imposed fines after conviction can range from $5,000 to $300,000 for a first offence and $10,000 to $600,000 for subsequent offence. Fines for serious offences range from $15,000 to $1,000,000 for a first offence, and $30,000 to $2,000,000 for subsequent offences. Post-conviction fines for serious offences by corporations are even higher, ranging from $500,000 to $6,000,000 for first offences, and $1,000,000 to $12,000,000 for subsequent offences.

              2. Suspension or cancellation of licences. Suspensions and cancellations can be temporary, for a period determined by the court, or permanent.

              3. Prohibitions. The court can prohibit individuals from engaging in fishing activities or from applying for new licenses for a specified period.

                4. Seizure. Courts can order forfeiture of fish, proceeds from the sale of fish, fishing gear and vessels or other equipment used in the commission of an offence.

                  5. Imprisonment. In serious cases, such as fishing endangered species or repeated violations, offenders can face a term of imprisonment in addition to the above penalties.4

                  Legal Services for People Accused of Fishing Violations

                  If you, your company or your organization has been impacted by fisheries charges or the effects of unauthorized fishing, we can help. To assist our clients, we:

                  • provide detailed and comprehensive legal advice to help you understand your rights, assess the charges, and prepare your defence;
                  • gather and examine evidence and documentation produced by fisheries offers and prosecutors to identify weaknesses or inaccuracies in the case
                  • help you pursue compensation for damages if violations of fisheries laws resulted in damage to your property or natural resources
                  • work to reduce the severity of penalties based on the circumstances and specifics of the offense.

                  Contact us today to receive expert advice and secure legal representation.

                  Hunting Offences and Penalties in BC

                  Hunters in British Columbia are required to hold a valid license, often subject to restrictions based on species, quantity, seasons, and designated areas. Violating these regulations by hunting without proper authorization or outside permissible areas or conditions can lead to severe legal repercussions.

                  Experienced and inexperienced hunters alike make mistakes. You may confuse a white-tailed deer for a mule deer, you may forget to get a landowner’s permission before starting a hunt, or you may mistake your location and end up hunting game outside of a wildlife management area.

                  Also, hunting offences are typically “strict liability” offences – meaning that if the evidence shows that you carried out the illegal act, you will be found guilty of that act regardless of whether you intended to do it. This means that the Crown generally has an easier job proving hunting offences than it does proving many criminal offences. Nevertheless, a conviction for a hunting infraction can result in a significant fine, a suspension of your hunting privileges, and even the seizure of personal property, such as your vehicle and rifle.

                  Common Hunting Offences

                  These are some of the most common hunting violations our clients face:

                  1. Hunting Out of Season;
                  2. Hunting Without a Licence;
                  3. Hunting in a Prohibited Area;
                  4. Hunting Threatened or Endangered Species;
                  5. Unlawful Possession of Wildlife;
                  6. Illegal Trafficking of Wildlife;
                  7. Illegal Use of Hunting Equipment;
                  8. Damaging Wildlife Habitat.

                  Penalties for Hunting Offences

                  The penalties for committing hunting offences under the Wildlife Act or Firearm Act include the following:

                  1. Warnings. These are notices of violations that do not result in a fine or charge, but that will result in a fine or charge on any subsequent occasion.
                  • Fines. For first offences, fines on violation tickets range from $345 to $1,495. For subsequent offences and more serious offences, the potential fines are much larger. If you fail to pay a fine within the time required, all licences (hunting and angling), permits and limited entry hunting authorizations issued to you under the Wildlife Act will be cancelled immediately.
                  • License suspension or cancellation. Courts may suspend or cancel hunting licenses, firearms licenses, or impose a hunting ban for a specified time.
                  • Seizure. Conservation Officers have broad powers to seize firearms, hunting gear, dead wildlife, vehicles and anything they have reasonable grounds to believe provides evidence of an offence.
                  • Convictions and imprisonment. Convictions can lead to a criminal record, which may affect future employment or travel. The severity of the punishment is typically based on the nature of the violation. In severe cases, such as hunting endangered species or repeated offenses, violators may face a term of imprisonment.

                  Legal Services for Defendants and Victims of Wildlife Offences

                  If you have been ticketed or charged with hunting offences, or if unauthorized hunting activities by others that harmed the environment, property, or wildlife in a way that has affected you, we are here to help. We handle cases involving violations of hunting and environmental laws and can assist in protecting your rights and the ecosystem.

                  We provide detailed and comprehensive legal advice to help you understand your rights and the laws that apply to your situation. We gather and examine the evidence and documents relevant to the charges against you. We identify weaknesses or inaccuracies in the case, prepare your defence, ensure a fair trial and potentially reduce the severity of any penalties you may face. In appropriate cases, we can also pursue compensation for damage to your property or natural resources caused by the violations of others.

                  With our extensive experience in environmental cases and wildlife violations, we are ready to support you through the legal process and protect your rights. Contact us today to receive expert advice and secure legal representation.

                  Psychological Injury in Aviation Accidents   

                  My client and her husband were on their way to Cancun, Mexico on an Air Transat flight from Vancouver.  They had purchased a package vacation which included hotel, transfers and the flight to the holiday destination.  They were looking forward to an active vacation including visiting ruins and going parasailing.  They had been to the same resort before.  They decided to return. 

                  The couple was seated in the last row of the Air Transat aircraft.  Behind them was a corridor.  At the other end of the corridor the flight attendants stored the food carts that are wheeled though the cabin. 

                  Unfortunately, one of the flight attendants had forgotten to attach one of the food carts prior to landing.  The landing was a hard and fast one.  When the plane touched down the brakes were applied heavily.  The food cart hurtled forward, rolled down the corridor gathering speed and struck the back of my client’s seat.  This produced a whiplash injury that was severe.  There was permanent physical injury.  Medical evidence presented at trial showed that my client suffered injury to the paraspinal muscles of her cervical spine and upper back.  This injury caused irritation of the lower nerves of the brachial plexus. 

                  The injury ruined the vacation for both of them.  My client wore a neck brace.  She took medication.  She lay in her room or by the pool.  She was in pain.  The doctor told her not to go to the beach.  She could only do short walks. 

                  In addition to the physical injury there was psychological injury.  My client was diagnosed with major depression, chronic pain disorder and PTSD.

                  The trial took eleven days.  Mr. Justice Funt’s decision awarded damages for psychological injury for the first time in Canadian history in a case that was governed by the Montreal Convention.  This convention provides for automatic compensation for the passenger when there is an accident on an international flight, but it limits the amount that will be paid for that injury.  From the inception of this international treaty and its predecessor, all payments had been for bodily injury only.  However, starting in the United States, injured passengers began to recover for a psychological injury when that injury was the result of a bodily injury.  Mr. Justice Funt found that this principle applied in this case.

                  In addition, Mr. Justice Funt awarded damages for the spoiled holiday, something that had never been awarded before under the Montreal Convention.  My client received a refund of the cost of the vacation for herself and her husband and an additional amount, not quantified, as solace for the pain and suffering experienced during the spoiled holiday. 

                  Cases governed by the Montreal Convention are examined around the world and cited in cases dealing with similar issues.  The decision of Mr. Justice Funt was cited by the United States Court of Appeals for the 6th Circuit in the Etihad case.  Wettlaufer v. Air Transat

                  Missing Banknotes

                  When a lawsuit was filed against a Canadian airline, my task was to determine defences.  The facts started with a Canadian bank sending Bank of Greece bank notes by air in a package from Vancouver to the Bank of Greece in Athens.  The package did not arrive.  The loss of the banknotes was unexplained. 

                  The Bank of Greece claimed against the airline.  The insurers for the airline honoured the insurance policy and paid for the lost money to the Bank of Greece.

                  Sometime later, some former employees of the airline in Montreal were found to have been buying chalets and snowmobiles.  The RCMP investigated.  They found that the package of money had been taken off the aircraft in Montreal.  There was a criminal prosecution and some of the money was recovered. 

                  The RCMP sent the recovered money to the Bank of Greece.  The Bank of Greece did not know what to do with it.  The bank had already been reimbursed for the loss.  It sent the money to the insurers.  When the insurers found out about the theft of the money, they claimed against the airline.  They said that they should not have paid the airline for the loss.  Theft was a loss outside the protection of the insurance policy.  It was gross misconduct.  The insurers commenced a lawsuit in British Columbia Supreme Court to recover the money from the airline. 

                  With defences developed and filed in Supreme Court, negotiation eventually settled the case.