ICBC Law

BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Archive for the ‘ICBC Minor Injury Caps’ Category

Why BC’s “Minor” Injury / Tribunal Laws Are Vulnerable to a Charter Challenge

November 16th, 2018

British Columbia is not the first jurisdiction in Canada to take away the rights of the public in order to strengthen insurer profits.  This has been done in other Provinces and legal challenges to injury cap laws have withheld constitutional challenge.  BC, however, has gone further than simply capping damages and combined these with a system that forces ‘prescribed’ injury victims away from Court and into a Civil Tribunal.  This combination leaves BC’s recent legislation vulnerable to legal challenge.

In the simplest of terms, when you are injured in a crash and sue the at fault motorist for your losses ICBC, BC’s government controlled monopoly auto insurer, can allege your injuries are “minor”.  When they do so, even if the allegation is frivolous, your claim gets steered out of Court and into a Civil Tribunal.   From there the Tribunal has the exclusive jurisdiction to decide if your injury is, in fact, “minor” (a term which encompasses many serious injuries).  BC requires the injured party to bear the burden of proving the injury is not minor.  If you can’t clear this hurdle you can’t go to Court unless the Tribunal also decides there is “a substantial likelihood that damages will exceed the tribunal limit“ (or in other very limited circumstances).

BC created a two tiered justice system.  One for ‘minor‘ injury claimants and one for others.  If you don’t have a “minor” injury you can choose where you wish to sue.  If you have an alleged “minor” injury you have no choice.  You have to go to the Tribunal and clear their barriers before being given permission to go to Court.

The gatekeeping function of who is forced into the Tribunal is based solely on the physical and mental characteristics of the claimant.

If you have something as benign as a hairline fracture in your finger you can go to court. If you have PTSD, a concussion, depression or another psychiatric condition you get funnelled to the Tribunal.  Why is this a problem?  Section 15 of Canada’s Charter of Rights and Freedoms protects individuals from discrimination based on “mental or physical disability“.

Section 15 of the Charter reads as follows (key words emphasised by me)

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

BC’s system violates the plain language of this constitutional protection.   The benefit of the law is going to Court.  The barrier is a mental or physical disability used as the sole criteria to determine whose rights are taken away.

If a Court finds s. 15 is violated BC will have to prove this discrimination “can be demonstrably justified in a free and democratic society.”  It stretches the imagination on how taking away the public’s judicial rights based on protected grounds in order to save an insurer money meets this test.

There can little doubt that the Tribunal system is designed to be unfair and affords lesser justice to litigants compared to the BC Supreme Court –

  • BC’s Attorney General admitted during debate that they designed this system to discourage people from having a lawyer and wanting lay litigants attending the Tribunal against an insurance “specialist“.
  • The Government carved themselves out of the Tribunal’s jurisdiction making them immune from lawsuits before it.
  • The Tribunal limits the expert evidence litigants can use and further limits the cost recovery available for hiring experts.
  • Tribunal cases have extremely curtailed appellate rights.  These are limited to judicial review under the strictest standards compared to the more robust rights a litigant would have after a BC Supreme Court trial.
  • Tribunal adjudicators, unlike BC Supreme Court Justices, are not appointed by the Federal Government and do not enjoy the job security Justices do.
  • The Tribunal itself is designed by the BC Government, the same entity that controls ICBC and has been taking their profits for years.
  • Litigants before the Tribunal are afforded fewer rights in the realm of civil procedure.

This is not a case of Government creating a separate but equal route to justice for people with modest claims. This is not a case of Government giving people a choice between different forums.   This is a case of Government using Charter protected grounds to force individuals with prescribed mental and physical injuries to overcome further obstacles before being allowed access to Court.

BC’s new laws come into force on April 1, 2019.  A Charter challenge will be right on its heels.


“Minor” Injury Victims Limited To Single Expert and Curtailed Budget By Civil Resolution Tribunal

November 15th, 2018

This week the BC Government published more details surrounding their new legal regime for collision victims ICBC alleges to have ‘minor’ injuries.  In short it limits expert witness rights and limits fee recovery for the expenses of hiring experts.

The Accident Claims Regulation provides as follows:

– allows “on the request of a party or on the tribunal’s own initiative” for the tribunal to “appoint an expert to conduct an independent medical examination with respect to a person’s injuries related to an accident claim

– the scope of the examination and report that follows can comment on “the nature and extent of the person’s injuries; the person’s diagnosis; the person’s condition at the time of the independent medical examination; the person’s prognosis.”

– the claimant is restricted, as a default position to “introduce expert evidence from one expert” separate from any expert the Tribunal chooses for an independent medical examination.

– the claimant can ask the tribunal for permission to have up to two additional experts “if the tribunal considers that the introduction of additional evidence is reasonably necessary and proportionate to the accident claim”.

– the following restrictions on costs recovery, both for expert witnesses and overall, are set out

(i) $2 000 is the limit prescribed for expenses and charges payable in
relation to each expert, including any expenses and charges payable
in relation to reports or other evidence prepared by each expert
providing expert evidence, and
(ii) $5 000 is the total limit prescribed for all recoverable fees, expenses
and charges, including any expenses and charges payable under
subparagraph

Just to break down how this work.  If you are injured in a crash and ICBC alleges you have a ‘minor’ injury (whether your injury is minor or not) you will have to go to the Tribunal.   The Tribunal will have to decide if your injury is minor.  If not you are free to go to Court.  If it is deemed ‘minor’ you will remain stuck in the Tribunal for quantum to be decided unless you persuade the Tribunal that there is “a substantial likelihood that damages will exceed the tribunal limit“.  These barriers must be overcome with a limited budget and experts because as a default you will be limited to one expert and can only recovery $2,000 for that expert’s services even if more is charged.


British Columbia’s “Minor” Injury Law Says One Year Actually Means Forever

November 14th, 2018

Yes, you read that right.  12 months is 1 year but according to new Laws and Regulations passed by British Columbia 12 months actually means forever.

What am I talking about?  Earlier this year the BC Government passed a law capping non-pecuniary damages for what they call ‘minor’ injuries.  The law states that if the injuries cause “serious impairment“, however, that they are no longer minor and not subject to the cap.  Seems fair enough right?  Read on.

To meet the definition of ‘serious impairment‘ in section 101(1) of the Insurance (Vehicle) Act the injury must not “be resolved within 12 months” and meet whatever further criteria the government dog-piles on via Regulation.

Last week the Government published their Regulations which added the requirement in addition to the 12 month duration required in the Act the injury must basically be disabling to lead to ‘serious impairment‘.  Then, they went further and said the 12 month injury also has to be permanent with a requirement that “the impairment is not expected to improve substantially”.

So when the Government tells you that injuries that last more than 12 months are not subject to the cap they are lying.  They in fact require the injuries to be disabling and permanent to shed the restrictions of the cap.

This inconsistency between the Act and Regulations appears illogical, incoherent and contrary to the stated intention of capping minor injuries.  A situation that opens the harsh Regulation to judicial challenge.  Probably one of many to come by British Columbians impacted by these new laws in 2019.


BC Government’s ICBC Law Labels Collision Brain Injuries “Minor”

November 9th, 2018

Earlier this year the BC Government called ICBC a ‘dumpster fire’.  They suggested drastic overhaul was needed to keep the Crown insurer alive and well.  In order to let them keep their monopoly the rights of British Columbians injured through careless drivers would need to be stripped.

But don’t worry, the Government assured us, only those who suffer ‘minor’ injuries will have their rights reduced.  All who watch Government know, however, that the Devil’s in the details.  Today those details came out and their assurances were misleading.  Many major injuries are caught in their ‘minor’ injury dragnet.

In an April 2, 2018 press release the Government assured the public “brain injuries” would not be labeled as minor.  Today Regulations were published that flat out state otherwise.

These Insurance (Vehicle) Regulations label a “concussion” as a “minor injury“.  A concussion is a brain injury.  There is no grey here.  The Government lied.

This brain injury inclusion is in addition to those injuries they previously told us are minor including

  • Chronic Depression
  • Post Traumatic Stress Disorder
  • Conversion Disorders
  • Chronic Pain Syndromes
  • Chronic physical injuries
  • Disabling physical injuries
  • All psychological “conditions”
  • All psychiatric “conditions”

There is already press out suggesting that “if psychological injuries, including minor concussions, last longer than four months, the caps no longer apply. If any physical injury lasts longer than 12 months, in those cases caps will not exist.”  This is not accurate.  The regulations create a far more onerous workaround to this ‘minor’ injury cap than simply having symptoms persist for more than 4 or 12 months respectively.  I will tackle that in a subsequent article. For now, I just wanted to call a spade a spade.  The government lied.  British Columbians’ rights have been drastically stripped for insurance company profit.


Why ICBC’s Boast of “Doubling of Benefits” Is Deceptive at Best

June 1st, 2018

Today ICBC and the BC Attorney General were publicly boasting about how new laws are ‘doubling benefits’ to accident victims.

 

ICBC Screenshot

This soundbite is technically true but also profoundly deceptive.

As part of the BC Government’s so-called ‘reforms’ of the BC auto insurance landscape they have doubled ‘no-fault’ medical and rehabilitation benefits from $150,000 to $300,000.

Why is this deceptive?  Because the soundbite is designed to persuade the public that their rights are being increased if they are involved in a collision when the polar opposite is true.  While the ceiling of no-fault benefits are technically increased for everybody only a sliver of the population will ever access these.  How few people?  According to BC’s Attorney General only 40 people per year.  40!

You don’t have to take my word for it.  Here is Attorney General David Eby’s response when questioned in the legislature about this benefit increase:

Lee: Just before we leave section 18, I recollect from our last committee session on this particular section that the Attorney General referred to the increase, of course, of accident benefits coverage from $150,000 lifetime to $300,000 lifetime. I’d just like the Attorney General to indicate how many instances there have been where a person’s lifetime level of $150,000 has been exceeded.

Hon. D. Eby: There are about 40 every year

Now there is nothing wrong with 40 collision victims having increased benefits.  That is fine.  They are catastrophically injured and need the help.  But it is coming with a cost.  Every single collision victim in BC is having their rights stripped as part of this trade off.   EVERY British Columbian injured by an impaired, distracted or otherwise negligent driver is actually having their rights stripped.  The legal changes ICBC lobbied for and the government passed include

The Government says they are only stripping the rights of collision victims with ‘minor’ injuries but the devil is in the details.  Included in ICBC definition of ‘minor’ are

  • Chronic Depression
  • Post Traumatic Stress Disorder
  • Conversion Disorders
  • Chronic Pain Syndromes
  • Chronic physical injuries
  • Disabling physical injuries
  • All psychological “conditions”
  • All psychiatric “conditions”

If the Government thinks its good policy to strip people’s rights so be it.  But don’t give us garbage and call it a gift.


BC Government Passes Discriminatory and Arguably Unconstitutional “Minor” Injury Law

May 10th, 2018

Well the BC Government did it.  Despite a written election promise not to strip British Columbians judicial rights to fix the ‘dumpster fire’ at ICBC they did exactly that.  With an extra dose of hypocrisy they expressly targeted those suffering collision related psychiatric conditions while celebrating “mental health week”.

NDP Election Lie

 

The BC NDP along with the Green Party went ahead and blamed “judges, lawyers and drivers“and passed Bill 20 into law.

Bill 20 Vote

 

 

 

 

Bill 20 breaks the above promise in just about every way possible.    In short Bill 20, along with Bill 22 that was passed earlier this week

This legislation, which will apply to all crashes after April 1, 2019 discriminates against people who sustain psychiatric and psychological conditions and will undoubtedly face constitutional challenge.  Today the BC Trial Lawyers published the below opinion suggesting legal challenge is imminent to this law and the saga of ICBC’s ‘dumpster fire’ and the government’s ill conceived response to it is far from over.

tlabc

 


BC Psychologists Speak Out Against ICBC Plan to Label Psychiatric Conditions as “Minor Injuries”

May 4th, 2018

As recently discussed the BC Government, at the lobbying of ICBC, are trying to pass a law reducing the rights of British Columbians who are injured by distracted, impaired or otherwise at fault drivers.

As part of the overhaul ICBC is trying to label all psychological and psychiatric conditions as “minor” injuries, taking away the judicial rights of people who suffer these injuries in collisions and capping compensation for these.

Today the BC Psychological Association weighed in on these proposed laws and unsurprisingly are harshly critical.  In discussing the medical reality of psychological injuries the BCPA notes as follows –

The British Columbia Psychological Association opposes the inclusion of “a psychological or psychiatric condition” in the definition of “minor injury” in Bill 20.  We feel it will be detrimental to the health and care of British Columbians who sustain injuries in motor vehicle accidents.

Under Bill 20, any psychological or psychiatric condition arising from a motor vehicle accident is deemed to be minor, unless it has not resolved within 12 months from the MVA, and also meets, as yet undefined, prescribed criteria. 

BCPA disagrees and takes the positions that:

  • Psychological injuries are not minor injuries. Each individual is unique in their symptoms. 
     
  • It is very difficult to determine the twelve-month outcome of a psychological injury as it may be affected by pain, restrictions in functioning due to physical injuries, and pre-accident history, including prior history of depression, anxiety, substance use, adverse early childhood experiences, including neglect and trauma, poor coping styles, and cultural factors.
     
  • The duration of symptoms after an event is not an appropriate scientific measure of the severity of the psychological injury.
     
  • Psychological conditions may arise at different times after a collision, depending upon a number of factors. Many potentially severe psychological conditions, such as post-traumatic stress disorder, depression, and anxiety, may have an initial onset shortly after, or months after, a collision. 
     
  • Psychological conditions may appear to resolve, only to recur at a later date due to a change in circumstance, prolonged recovery, or a triggering event such as a return to work, a return to driving, or anniversary of the collision. 
     
  • Bill 20 gives Government the authority to make regulations with respect to assessment, diagnosis and treatment of minor injuries (including psychological injuries). Because of the unique circumstances of each individual, psychological injuries do not lend themselves to such an approach. Each individual must be assessed by a qualified psychology professional and prescribed the treatment that will best lead to an optimal recovery for them. 
     
  • If the appropriate treatment is not commenced as psychological symptoms manifest, it may lead to prolonged suffering, delayed return to work, impaired activities of daily living, and in increased treatment and wage loss costs in the long run.
     
  • Removing psychological and psychiatric conditions from the “minor injury” designation will help achieve the goal of people receiving better care and optimal recovery in the shortest time possible.
     
  • BCPA is also concerned with the proposed amendments to the Civil Resolution Tribunal Act.
     
  • Under the Act, the determination of whether an injury is “minor” and the entitlement to benefits from ICBC, is exclusively given to the Civil Resolution Tribunal.
     
  • Those suffering from psychological conditions are ill-equipped to deal with an appeal process on their own.
     
  • It is also unlikely that many of those people will be able to have the assistance of a lawyer in this process.
     
  • This process, online and/or in person, also puts at a disadvantage the elderly, people without computers or computer skills, those with poor English language skills, and those of limited means.
     
  • BCPA applauds this government’s efforts to address the mental health and addictions issues of British Columbians, but classifying psychological and psychiatric conditions as “minor” runs the risk of taking a step back in the treatment of psychological injuries arising from a car accident.

New Insurance Law Looks to Give ICBC and Government Control Over Your Health Care Choices

May 1st, 2018

I’ve written extensively about some of the troubling changes the government is proposing for collision victims through their ICBC legal reforms.  One topic that has yet to receive any press, and is perhaps as concerning as any, is the Government’s proposal to give ICBC and themselves total power over what therapies collision victims receive.

If you are injured in a crash by a careless driver you have the right to choose your own health care treatments.  If these expenses are deemed ‘reasonable’ you are entitled to be paid back the full cost of your expenses from the at fault driver’s insurance company (usually ICBC for BC based crashes).

This will all change if the NDP pass Bill 20.  Instead an injured collision victim will be stripped in their ability to recover actual ‘health care losses’ from ICBC and recovery is reduced only to an amount that the government establishes by regulation.  If your actual medical costs exceed this you are out of luck.  The government is stripping your right to sue for the difference.  Specifically proposed s. 82.2 reads as follows:

Liability limited for health care costs

82.2  (1) In this section, “health care loss” means a cost or expense incurred or to be incurred for health care provided by a health care practitioner.

(2) In an action for damages caused by a vehicle or the use or operation of a vehicle, a person may not recover, for a health care loss, an amount that exceeds one of the following:

(a) the amount, if any, that is established or determined for the particular health care loss under a regulation under section 45.1 (1) (a);

(b) in any other case, the value of the particular health care loss.

(3) If, for the purposes of this section, it is necessary to estimate the value of a health care loss, the value must be estimated according to the value the deferred health care loss has on the date of the estimate determined in accordance with subsection (2).

(4) This section applies only in relation to a health care loss resulting from an accident occurring on or after April 1, 2019.

If you are concerned about these changes contact your MLA and speak up now.  Bill 22 is set to pass into law imminently and time to persuade government to divert course is quickly running out.


ICBC “Minor Injury” Tribunal Designed To Be Unfair

April 27th, 2018

This week the BC Government is debating amendments to laws creating the Civil Resolution Tribunal to expand their powers to have mandatory jurisdiction over “minor” injury litigation.

As previously discussed, the word “minor” is being used to mislead the public.  The Government has defined the word to include many serious and disabling injuries including

  • Chronic Depression
  • Post Traumatic Stress Disorder
  • Conversion Disorders
  • Chronic Pain Syndromes
  • Chronic physical injuries
  • Disabling physical injuries
  • All psychological “conditions”
  • All psychiatric “conditions”

In any event, the Civil Resolution Tribunal Amendment Act which may pass into law as early as next week takes away the right of British Columbians injured by careless drivers on our roadways to go to court.  Instead this law requires you to go to a Tribunal that will decide whether you have a “minor” injury and your level of compensation which will also be capped.

In debate this week the Government admits that their purpose in funnelling claims here is to create an unfair landscape.  They expressly state they hope to discourage the injured party from hiring a lawyer and to have you face an ICBC “specialist” in the dispute.

Here is our Attorney General expressly stating the intent of the legislation is to discourage people from hiring a lawyer when they are forced to litigate an injury claim:

The intent is to have this tribunal operate in most cases without counsel. You’ll see, in this section that we’re talking about, that we’re making an exception, saying: 

“Look, if you really want to bring a lawyer here, given the amount of money that you’re going to pay in legal fees and the amount that’s under dispute, which by definition under this act, is less than $50,000…. If you really want to bring a lawyer, you can bring a lawyer. But the amount of money that you’re going to spend on your lawyer is going to eat up a lot of your award, so it’s probably not to your interest.”

So, the Government has created a system where they don’t want you to have a lawyer.  And who do they want you to face in the Tribunal?  An ICBC “specialist.“.

Again, from our Attorney General

The intention is currently that an ICBC adjuster would attend. ICBC would be the respondent to the claim. So when someone who has been in an accident doesn’t agree with what the adjuster has said their claim is worth…. they can go to the civil resolution tribunal to have that dispute heard. There has to be someone on the other side saying here’s what we think the claim is worth. Currently, ICBC’s thinking is…. that that person would be an adjuster….They are specialists in determining the value of claims.

So those people would be attending the hearing, making representations to the tribunal about what their position is — what the claim is worth. The person who was in the accident makes representation, with their medical records and their costs and so on, to the tribunal about what they think the claim is worth. Then the tribunal would make a decision

So there you have it.  The purpose of the government’s new law is to reduce your right to compensation when injured by a distracted or impaired driver and if you don’t like it to have your dispute heard, without a lawyer, facing an insurance company paid for “specialist”.

 


New Bill Looks to Give ICBC Immunity From the Courts

April 26th, 2018

This week the BC Government introduced two bills that look to give ICBC more power at the expense of British Columbians.  The Insurance (Vehicle) Amendment Act and the Civil Resolution Tribunal Amendment Act.

As previously discussed, the first Bill looks to label almost every injury suffered by collision victims as “minor” stripping people’s right to compensation.  Included in the Government’s definition of ‘minor’ injury are:

  • Chronic Depression
  • Post Traumatic Stress Disorder
  • Conversion Disorders
  • Chronic Pain Syndromes
  • Chronic physical injuries
  • Disabling physical injuries
  • All psychological “conditions”
  • All psychiatric “conditions”

The government is trying to sell this to the public by arguing it is fair to strip the rights of collision victims with the above injuries in order to give all people injured in collisions (including the at fault motorist) more generous rehabilitation benefits.  The Devil is in the details however and included in the proposed legal reforms is ICBC judicial immunity.

If ICBC refuses to pay these so-called more generous benefits the law gives them judicial immunity.  Division 7 of the Civil Resolution Tribunal Amendment Act takes away the public’s right to challenge ICBC’s denial of accident benefits in court and instead requires “the determination of entitlement to benefits paid or payable” to go through a Tribunal not run by judges but instead Government appointed bureaucrats.

Before the Government passes these changes  into law a fundamental question is do you trust ICBC so much that they should be granted judicial immunity?  If not, please speak up to your MLA immediately as the window to do so is short.