For two years BC crash victims were subject to the “minor injury” scheme. Basically a law labelling that most injuries are minor. Many British Columbians were surprised to find out that most injuries are labelled minor under this law despite common understanding of the word meaning otherwise. That’s legal drafting and defining in action. Legislative trickery. Words don’t always mean what you think they do, they mean what the government defined them to.
The constitutionality of the Civil Resolution Tribunal, the body given power to decide if injuries are ‘minor’, was in flux for years. With more legal clarity now determinations are being made. This week one of the first minor injury determinations was handed down with the Tribunal finding that an applicant’s chronic myofascial pain was caught by the broad BC Government definition of ‘minor injury’.
In the recent case (Silver v. All-West Heritage Glass Ltd.) the applicant was injured in a 2020 crash that the Defendant was at fault for. The crash caused chronic injury to the Plaintiff’s shoulder that continued to trouble her years later and interfere with some day to day activities. Despite the chronic nature of the injury the Tribunal provided the following reasons finding they fit the definition of minor:
Earlier this year the CRT was asked to set aside a “minor” injury settlement after the applicant discovered a disc bulge. The CRT refused to do so. Today reasons for judgement were published (Bajracharya v. Rahul) by the CRT inovlving a collision claim disputing the ‘minor’ injury designation. Despite this opportunity the CRT refused to dive into the topic finding that the Applicant was liable for the collision thus dismissing the claim and finding that the minor injury question did not need to be answered. In reaching this conclusion Vice Chair Andrea Ritchie provided the following reasons:
What do BC Courts do with an indivisible injury claim where the injury arose in the pre ‘minor’ injury caps era and was aggravated after the ‘minor’ injury law came into force?
The first case to address this question found that, in line with the reasoning of Bradley v. Groves, the initial tort feasors can be held liable for the whole of the indivisible loss.
In the recent case (Rabbani-Nejad v. Sharma) the Plaintiff was injured in three collisions. She sued for the first two and liability was admitted. Both these claims preceded the ‘minor’ injury cap. The third crash occurred in the ‘minor’ injury cap era and no lawsuit was started.
The Court found all three crashes contributed to some extent to her injuries. The Court found the first two crashes caused an indivisible injury. The third crash caused some new injury in addition to aggravating the indivisible injury. To the extent of the latter the court found the Defendants were liable for the full extent of the losses from the indivisible injuries including the aggravation from the third crash. In reaching this conclusion Mr. Justice G.C. Weatherill provided the following reasons:
Update – Below is a copy of the filed Notice of Civil Claim. It is a compelling and concise pleading and I recommend that lawyers and non-lawyers alike review the arguments in full. In short it argues that the scheme of capping ‘minor‘ injuries and forcing some claims away from the BC Supreme Court violates s. 15 of the Charter (which I previously discussed here) and also is an improper derogation from the Superior Court’s jurisdiction as contemplated by s. 96 of the Constitution Act.
In the latest ‘reform’ of the law for collision victims in BC the government has passed a new regulation shortening the time to submit receipts to ICBC from 2 years to a mere 60 days.
Today Order in Council 136 was approved. Among the changes is the creation of section 88.01 of the Insurance (Vehicle) Regulation creating a far shorter deadline for the submission of receipts to ICBC. The new section reads as follows: Requirement for receipts 88.01 (1) If an accident occurs for which benefits are provided under section 88, the insured must provide to the corporation a receipt for the expenses incurred that will be compensated as benefits under that section no later than 60 days from the date that those expenses are incurred. (2) The corporation is not liable to an insured who, without reasonable excuse, fails to comply with this section.
This requirement appears not to be retroactive with section 104.21 noting “Section 88.01 applies in respect of an accident that occurs on or after April 1, 2019.“.
If you don’t submit your receipts in this timeframe and cannot get them covered by your own insurance you may also be out of luck recovering the expenses in your claim against the at-fault motorist as the Government’s ‘reforms’ have severely stripped peoples rights to claim special damages if they are injured in a BC collision.
This post will be short and to the point. I received a few calls this week from people telling me that, after discussions with adjusters, they had the impression that upcoming ‘minor injury’ caps may apply to them. If you had a BC crash before April 1, 2019 the caps don’t apply to your claim. Period. The law is not retroactive. If you wait until after April 1 to settle your pre-April 1 crash the caps will not apply to you. If someone is suggesting otherwise it simply is not true.
If you were involved in a BC crash and wish to discuss this further don’t hesitate to call me, toll free, at 1800-663-6299 or reach me confidentially here.
This week I had the pleasure of discussing the ins and outs of the new ICBC “minor” injury laws and Tribunal system set to hit British Columbia for crashes after April 1, 2019 on Kyla Lee’s Driving Law podcast.
Thank you Kyla Lee for having me on.
You can listen to the full episode here –
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 –
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.
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.
When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.
This blog is authored by personal injury and ICBC Claims lawyer Erik Magraken. Use of the site and sending or receiving information through it does not establish a solicitor/client relationship. The views expressed and the content provided on this blog is for nonprofit educational purposes. It is not, and is not intended to be, legal advice on any specific set of facts. The use of this website does not create a solicitor-client (attorney-client) relationship. If you require legal advice, you should contact a lawyer directly.