Canadian Lawyer

Regional wrap-up Lawyer no 'apologist' for the government's inactivity A B.C. lawyer says the province has the worst legislation in Canada when it comes to compensation for family members through a wrongful death. "It's bad all across the country but B.C. is the worst," says Burnaby lawyer Don Renaud, who has been spearheading a fight through the Trial Lawyers Association of British Columbia and other groups to bring in fairer legislation than the Family Compensation Act. The act goes back to 1846, and was known as the Fatal Accidents Act. Essentially, it allows compensation for the death of a main income earner. It presents a legal irony: It was less costly to cause death than to injure an individual. "It was a joke in law school, but it is not funny when you have to sit across the desk and explain it to someone who has lost a family member," says Renaud. Current legislation does not recognize compensation for the loss of children, aged individuals, or the disabled. "It's not my position to serve as an apologist for the government's inactivity. It's gone on so long it is bordering on legislative incompetence," says Renaud, who is noticeably frustrated with a process of change launched in 2005. Alberta, Manitoba, Saskatchewan, New Brunswick, and Nova Scotia have all amended legislation to allow claims for grief, lost care, and lost companionship. But they could go further, says Renaud. In B.C., Renaud and groups of concerned and affected citizen advocates (the B.C. Coalition of People with Disabilities and the Wrongful Death Law Reform Group) have been lobbying government to provide a more comprehensive act. TLABC and the Wrongful Death Law Reform Group (family representatives) developed a new version of the law because they see the need for a complete overhaul. The older B.C. legislation takes a "top down" view while more modern legislation, in place in the U.S., takes a "bottom up" view responsive to the conditions created by a wrongful death. 12 June 2013 www.CANADIAN Don Renaud says B.C. has the worst wrongful death compensation laws in Canada. "There has been some movement by government," says Renaud. In 2007, an inquiry asked for submissions. Subsequently, the B.C. government published a white and green paper on the issue. But, outside of hiring an actuary recently to look at insurance company lobbyist concerns that such a statute would be costly, there has been no further government activity in the seven years. "It all gives the appearance of something being done but nothing is really being done," he said. "It's L a w ye r m a g . c o m like putting lipstick on a pig." Renaud doesn't agree it will cost more for insurers. Having good compensation laws inevitably leads to higher standards in road design and in areas such as hospital and medical care. Former Washington state lawyer Wyatt Pickett, now living in B.C., was hired in 2011 to write the TLABC proposed legislation. Pickett has taken U.S. laws that relate to wrongful death and the estate and incorporated them, allowing for one action. It provides compensation to the spouse, parents, and children who have suffered loss in a wrongful death. But, it also allows the estate to claim as well. Another change Pickett recommends is the ability to claim for "lost years damages" relating to future earnings (less lifetime consumption) of a deceased individual. "It could be ground breaking for Canada," says TLABC spokesman Bentley Doyle, if B.C. became the first province to pattern new legislation after the U.S. model. — Jean Sorensen jean_sorensen@telus.net MOU affirms judicial independence A memorandum of understanding signed by British Columbia's attorney general and the province's three chief justices sets out jurisdictions and acknowledges "each of the courts must be given sufficient resources to allow them to carry out their functions." The legal action for an MOU, a framework agreement, is set out in the new Justice Reform and Transparency Act passed in early 2013. "I don't think the MOU changes very much," B.C.'s Chief Justice Lance Finch tells Canadian Lawyer. "It records the relationship that has existed between the courts and ministry of the AG for a long time." That record is simply setting out "where the line is drawn," he says, as the MOU reaffirms judicial independence but government collaboration on issues. Not to speak "disparagingly" of ministry staff, Finch says, but ministers and ministry staff turn over more frequently than court chief justices do. "All are not as familiar with the courts as some of us who work in the courts," he says, adding the 15-page document also serves as reference for new staff.

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