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Why BC's "Minor" Injury / Tribunal Laws Are Vulnerable to a Charter Challenge

Written by admin on . Posted in BC Civil Resolution Tribunal, ICBC Minor Injury Caps, Uncategorized.

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.

Why ICBC's Boast of "Doubling of Benefits" Is Deceptive at Best

Written by admin on . Posted in BC Civil Resolution Tribunal, ICBC Minor Injury Caps.

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.

Kyla Lee is Awesome; BC's New ICBC Laws Not so Much…

Written by admin on . Posted in BC Civil Resolution Tribunal, Uncategorized.

Kyla Lee is a criminal lawyer practicing out of Vancouver well versed in issues relating to BC driving law and issues of fairness with administrative hearings.  Kyla, in a regular column she pens at VancouverisAwesome, had some scathing observations about the realities of BC’s Civil Rights Tribunal being fed ICBC injury claims and the inherent unfairness that British Columbians will face under this soon to be mandatory scheme.
I urge anyone interested in the subject to read the column in full.  The highlights include the following observation:
But the really disturbing part about this that no one has been paying much attention to is how the ability to prescribe by regulation flows together. Not only can regulations enacted by the BC Government increase the amount of the Civil Resolution Tribunal’s jurisdiction but the definition of minor injury can also be amended by regulation.
What this means is that if Government does not like the fact that too many claims are being paid out for a particular type of injury, say, a broken leg, it can call a broken leg a “minor injury” by enacting a quick regulation and suddenly those who have suffered a broken leg are left without a remedy in court. Instead, they are at the mercy of the Civil Resolution Tribunal.
And there are more troubling changes to the Civil Resolution Tribunal legislation that should have the public gravely concerned. The enabling statute has been amended to state explicitly that the tribunal is an expert tribunal in any area where the legislation states they have specialized expertise.
Care to hazard a guess about one area in which a tribunal that has heretofore not dealt with motor vehicle accident claims has specialized expertise? If you guessed motor vehicle accident claims, you are picking up on this disturbing trend.
The specialized expertise designation is of particular importance when considering the ability to appeal decisions of the tribunal. These appeals are known as judicial review.
Under the rules of administrative law, a tribunal with specialized expertise is supposed to be afforded substantial degrees of deference. This means that judges cannot overrule their decisions unless there is a clear error or a clearly unreasonable finding. Moreover, the court is required to defer to the tribunal’s own interpretation of the law in areas where it has specialized expertise. So if the tribunal says that “depression and anxiety” are “psychological conditions” that constitute minor injuries, a court cannot interfere with that finding unless it is unreasonable, even if there are other reasonable interpretations that say otherwise.
Now who is in charge of this ‘specialized tribunal‘?  BC’s Attorney General, the same person in charge of ICBC’s so-called ‘dumpster fire‘.  It does not take an overly critical lens to see concern when the person in charge of ICBC is also in charge of appointing ‘specialists’ subject to limited judicial oversight to adjudicate British Columbians ICBC disputes.

ICBC "Minor Injury" Tribunal Designed To Be Unfair

Written by admin on . Posted in BC Civil Resolution Tribunal, ICBC Minor Injury Caps, Uncategorized.

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?

Written by admin on . Posted in BC Civil Resolution Tribunal, ICBC Minor Injury Caps, Uncategorized.

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.