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.

Posts Tagged ‘BC Civil Resolution Tribunal’

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”.

 


What Will ICBC’s “Minor” Injury Caps Look Like?

February 20th, 2018

As previously discussed, ICBC and the insurance lobby are on the cusp of persuading the BC Government to pass laws capping ‘minor’ injuries and reducing judicial remedies for those caught by the cap.

Assuming the insurance lobby get their way what will ‘minor’ injury caps look like?  The details are incomplete but this is what is known right now.

Who gets stuck with a cap?

If you are injured by the negligence of a distracted, impaired or otherwise careless driver you are having your judicial rights for non-pecuniary damages (pain and suffering) substituted with a government created artificial cap.  In a bizarre twist the Government is proposing to increase the benefits available to the careless driver if they are also injured at the cost of stripping some of the faultless party’s rights.

How much is the minor injury cap?

It is proposed that the cap will be set at $5,500.

How much of a reduction is this from my current legal rights?

A cap already exists across all of Canada (BC included) for non-pecuniary damages in negligence cases.  This cap was set by the Supreme Court of Canada in the late 1970’s at $100,000 and is indexed for inflation.  In today’s dollars non-pecuniary damages can be assessed up to, approximately, $370,000.

What is a “minor” injury?

I put the word “minor” in quotations because the definition will likely capture many claims most people would never consider to be minor.  It is not a medical term, rather, it is a phrase invented by the insurance industry.

The Government has been silent on the exact definition they will use however BC’s Attorney General has stated that the defininon will include “sprains, strains, mild whiplash, cuts, bruises and anxiety and stress“.  These all sound minor but the devil is in the details.  What if injuries become chronic problems?

ICBC hints that chronic injuries can get out of the cap however there’s a catch.  Not only will the injuries need to be chronic but also significantly disabling.  ICBC notes that “if the injury impacts your life for more than 12 months – for example, you’re still not able to go to work or school, have to modify your work hours or duties, or you’re unable to care for yourself – it will no longer be considered minor.”.

So, if ICBC gets their way “minor” will include injuries which can totally disable you for over 11 months.  They will also include permanent injuries so long as you can continue to “go to work or school“.

Who decides if my injury is “minor”?

The Government has been silent on this other than stating  “a medical professional” will decide if your injury is “minor“.  It is unclear exactly who this medical professional will be.

Is ICBC Foolproof in Designating Injuries as “minor”?

Of course not.  In ICBC’s own words they consider many injuries minor that are, in reality, complex and costly.

What if I want to challenge the designation?

The BC Government has noted that disputes over “the classification of an injury” will be funneled to the BC Civil Resolution Tribunal.

This means that if ICBC (or whatever ‘medical professional’ the government designates as the decision maker) says you have minor injuries you will not be able to have this challenged in court.  Instead you will be forced into a tribunal system.  The tribunal is not presently equipped to handle cases of medical complexity.  They currently only deal with strata fee disputes and very minor small claims.

As of now this Tribunal does not allow people to be represented by lawyers with s. 20 of the law creating the tribunal stating that the default position for hearings is that “the parties are to represent themselves“.

The Tribunal also does not have the ability to make binding judgements in Small Claims cases with s. 56.1 of the Civil Resolution Tribunal Act allowing a losing litigant to simply ‘object’ to the result.  The law states that “A party that is given notice of a final decision in relation to a tribunal small claim may make a notice of objection…..If a party makes a notice of objection under this section the final decision is not binding on any party“.

The above are just a few of the shortcomings the BC Government will have to overhaul if they stick to their plan to funnel ‘minor’ injury claims to the Tribunal.

When will the cap come into force?

The BC Government is proposing that people injured by negligent drivers on or after April 1, 2019 will be caught by the cap.

Can I do anything about this?

Yes.  It is not too late to take action and tell the government ‘no to caps’ if you think this is a bad idea.