By Jean Sorensen for Canadian Lawyer Magazine
British Columbia Attorney General David Eby's proposal last week to amend two provincial statutes in a bid to douse the Insurance Corporation of B.C.'s financial “dumpster fire” has drawn heat from the Canadian Bar Association B.C. Branch and the Trial Lawyers Association of B.C.
Under the proposed amendments, ICBC claims of less than $50,000 could be dealt with under the jurisdiction of the province’s new Civil Resolutions Tribunal and also limit payouts for minor pain and suffering.
The CBABC has voiced concerns regarding the tribunal’s experience in dealing with such claims, its independence from government and the ability of insured persons to go to court to get a “fair and adequate” settlement for injuries.
"The CRT is a relatively new organization with very little experience in personal injury matters. Its adjudicators have short tenures and thus limited independence from government, and the tribunal is responsible to the same minister as ICBC,” said Bill Veenstra, CBABC president.
“The proposed threshold of $50,000 is substantially greater than the CRT’s current threshold of $5,000 for small claims. Our courts do a good job of resolving disputes fairly, and trial dates are available within a few months for those plaintiffs who have straightforward claims and whose injuries have resolved. The government’s emphasis on speedy resolution through the CRT fails to account for the importance of ensuring that injuries have resolved before any decision is made on compensation.”
TLABC president Sonny Parhar also voiced concerns regarding the tribunal's ability to deal with claims.
“The CRT was created only a few years ago and was initially intended to work with British Columbians who have small claims or strata-related issues. We are concerned that the tribunal, in its current form, has little expertise or demonstrated capacity to deal with complicated issues pertaining to road collisions or the health care of British Columbians,” he said.
"Based on the TLABC’s extensive experience fighting for the rights of injured victims in British Columbia, we are deeply concerned that the CRT will only add yet another layer of bureaucracy to the process of pursuing fair compensation for injuries in this province.”
Veenstra is calling upon Eby and Premier John Horgan to scrap the proposed amendments as they restrict the rights of citizens to receive full and fair compensation and create new, exclusive resolution processes for disputes outside of the courts.
The proposed amendments to the Insurance (Vehicle) Act and the Civil Resolution Tribunal Act would become effective in April 2019 if passed in the legislature. Eby, at a press conference in Victoria earlier in the week, said the changes were needed to put ICBC back on solid financial footing.
Earlier this year when launching a review of the ICBC, Eby called it a “financial dumpster fire” as costs had soared and drivers faced steep premium hits. Critics reacted, saying the Liberals, the previous government, had siphoned ICBC profits to balance budgets. Eby promised changes with the new NDP government. Those changes are now being reflected in the statute amendments.
Using the tribunal, cases of less than $50,000 could be resolved in 90 days compared to the two or three years moving forward in the B.C. Supreme Court, and that will mean less legal costs, Eby said as legal fees and costs have grown to 24 per cent of ICBC's total annual cost. Injury payouts on claims have also soared, rising by 80 per cent from 2009-2016.
“We are rebalancing where ICBC premium dollars go,” said Eby. “We’re shifting the money out of administration, expert reports and court processes and into driver’s pockets through stable rates and better benefits.”
CRT chairwoman Shannon Salter, who received a five-year term renewal in March, said earlier discussions had been carried on with the government regarding the tribunal's handling of motor vehicle claims and had become more intense over the past few months.
“Our new areas of jurisdiction represent a strong vote of confidence from the provincial government as well as an opportunity to significantly increase access to justice for those injured in motor vehicle accidents in British Columbia,” she said.
The CRT has developed a year-long implementation plan for resolving motor vehicle personal injury claims. Salter said the new area of jurisdiction will mean increasing the number of staff and tribunal members, revising rules, creating new processes and online forms and developing new free legal information content for the Solution Explorer software used to aid individuals resolving claims.
Changes to the IVA will include a cap of $5,500 for pain and suffering on minor injuries, a new legal definition of what constitutes a minor injury in B.C., increased accident benefits for those injured and mechanisms for ICBC to no longer reimburse other insurance companies with the exception of WorkSafeBC and B.C.’s Medical Services Plan.
Changes to the CRTA, which came into effect in 2012 and deal with strata disputes and small claims up to $5,000, will expand its dispute resolution abilities and its financial scope up to $50,000 on ICBC claims. It will also have the power to deal with disagreement between the customer and ICBC on benefits, quantum and liability and whether an injury is considered minor.
Revisions to the CRTA would also allow ICBC clients to be represented by a lawyer as ICBC would use legal counsel. Another amendment limits fees and expenses to what a person would be entitled to at the tribunal level, if a case valued at below $50,000 is adjudicated in the B.C. Supreme Court.Further changes give the CRT regulation and rule-making power to limit experts and the power to require a single joint expert.
General amendments to the CRTA, not related to ICBC incidents, have been made to strengthen the operating clout of the tribunal. The proposed changes include: applying acts that affect litigation in court to litigation in the CRT, setting time limits for judicial reviews, ensuring that the CRT decisions are enforceable by the courts and establishing the CRT as an expert tribunal for all matters except general small claims and motor vehicle liability issues.
Parhar said the TLABC believes that the courts are the best mechanism for achieving fairness and independence from government when adjudicating the rights of British Columbians to receive fair compensation for their injuries.
“In short, under the proposed cap system, the CRT is not the right solution for ICBC’s financial mismanagement and dumpster fire.”
“There is no question that change needs to happen at ICBC,” in order to make it more accountable and ensure transparent business management decisions, said Veenstra. "Providing the corporation with an open avenue to limit how much someone can receive to cope with the impact of their injuries only punishes B.C. citizens without any consequences for the corporation not improving its own management practices.”