Court Challenge Launched Against ICBC's "Minor" Injury Laws

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.

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Government Creates 60 Day Deadline for Crash Victims to Submit ICBC Receipts

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.

ICBC "Minor" Injury Caps Are Not Retroactive!

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.

Talking All Things ICBC With Kyla Lee

This week I had the pleasure of appearing on Kyla Lee’s Driving Law Podcast where we tackled all things ICBC.   A big thank you to Kyla for having me on again. You can listen to the full episode here:

For more information on some of the subjects we covered you can click on the below links:
Expert Evidence Court Rule Changes
ICBC’s Secret “Meat Chart”
Judicial Criticism of the Meat Chart
ICBC “Minor” Injury Caps
Caps and the Charter
 

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

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

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

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.

Understanding ICBC's "Minor Injuries" For Crashes After April 1, 2019

This week the BC Government released their regulations setting out the framework for ICBC’s ‘minor injury’ scheme which will be in force for people involved in BC collisions after April 1, 2019.
First and foremost it should be emphasized that the term ‘minor injury’ is misleading.  It is a political term used to make the public ok with having your rights stripped.  In short many injuries that no-one should consider minor (such as brain injuries) are caught in this definition.  With the regulations now in force, however, British Columbians now have a better understanding of what the future will hold.  Here is the rundown.
Section 103 of the Insurance (Vehicle) Act notes that everyone in a BC crash after April 1, 2019 that suffers ‘minor’ injuries have their non-pecuniary damages capped at an amount set by regulation.  The regulations released last week set the cap at $5,500.
The term “minor injury” is defined in section 101 of the Act as follows:

a physical or mental injury, whether or not chronic, that

(a)subject to subsection (2), does not result in a serious impairment or a permanent serious disfigurement of the claimant, and

(b)is one of the following: 

(i)an abrasion, a contusion, a laceration, a sprain or a strain; 

(ii)a pain syndrome;

(iii)a psychological or psychiatric condition; 

(iv)a prescribed injury or an injury in a prescribed type or class of injury;

The Regulations went on to expand this list with the following ‘prescribed’ injuries

a. a concussion that does not result in an incapacity

b. A TMJ disorder

c. a WAD injury

A TMJ disorder was defined to mean “an injury that involves or surrounds the tempomandibular joint.“.

A WAD injury was defined to mean “a whiplash associated disorder other than one that exhibits one or both of the following:

(a) decreased or absent deep tendon reflexes, deep tendon weakness or sensory deficits, or other demonstrable and clinically relevant neurological symptoms;

(b) a fracture or dislocation of the spine”

Sprain was defined to mean “an injury to one or more ligaments unless all the fibres of at least one of the injured ligaments are torn“.

Strain was defined to mean “an injury to one or more muscles unless all the fibres of at least one of the injured muscles are torn“.

Psychological or Psychiatric Condition is defined as follows:

a clinical condition that

(a) is of a psychological or psychiatric nature, and

(b) does not result in an incapacity

The word “incapacity” was defined as well with the Regulations noting as follows:

in relation to a claimant, means a mental or physical incapacity that

(a) is not resolved within 16 weeks after the date the incapacity arises, and

(b) is the primary cause of a substantial inability of the claimant to perform

(i) essential tasks of the claimant’s regular employment, occupation or profession, despite reasonable efforts to accommodate the claimant’s incapacity and the claimant’s reasonable efforts to use the accomodation to allow the claimant to continue the claimant’s employment, occupation or profession.

(ii) the essential tasks of the claimants training or education in a program or course that the claimant was enrolled in or had been accepted for enrollment in at the time of the accident, despite reasonable efforts to accommodate the claimant’s incapacity and the claimant’s reasonable efforts to use the accomodation to allow the claimant to continue the claimant’s training or education, or

(iii) the claimant’s activities of daily living.

So, if you have any of the above “minor injuries” you are facing capped non-pecuniary damages.  A concussion by default is minor but if it does result in the above definition of ‘incapacity’ it will not be subject to the cap.  The same goes for psychological or psychiatric conditions.

A “minor” injury can also get around the cap if it results in  “serious impairment or a permanent serious disfigurement“.

These terms have also been defined as follows:

“permanent serious disfigurement”, in relation to a claimant, means a permanent disfigurement that, having regard to any prescribed criteria, significantly detracts from the claimant’s physical appearance;

“serious impairment”, in relation to a claimant, means a physical or mental impairment that

(a)is not resolved within 12 months, or another prescribed period, if any, after the date of an accident, and

(b)meets prescribed criteria.

The “prescribed criteria” set out in the regulations basically mirror the test for ‘incapacity’ with the regulations stating as follows:

The claimant’s physical or mental impairment must meet the following  prescribed criteria:

(a) the impairment results in a substantial inability of the claimant to perform

(i) the essential tasks of the claimant’s regular employment, occupation or profession, despite reasonable efforts to accommodate the claimant’s incapacity and the claimant’s reasonable efforts to use the accomodation to allow the claimant to continue the claimant’s employment, occupation or profession,

(ii) the essential tasks of the claimants training or education in a program or course that the claimant was enrolled in or had been accepted for enrollment in at the time of the accident, despite reasonable efforts to accommodate the claimant’s incapacity and the claimant’s reasonable efforts to use the accomodation to allow the claimant to continue the claimant’s training or education, or

(iii) the claimant’s activities of daily living.

(b) the impairment is primarily caused by the accident and is ongoing since the accident;

(c) the impairment is not expected to improve substantially.

You will see from this combination the injury not only has to last more than 12 months as set out in the Act but the Regulations went on to basically require the injury to be permanent to not be considered minor.

Even if a ‘minor’ injury goes on to meet the test for no longer being considered minor ICBC has the right to argue that it is still minor if you did not follow their treatment protocols with s. 101(2)(3)(4) of the Act holding as follows

(2)Subject to subsection (3) and the regulations, an injury that, at the time of the accident or when it first manifested, was an injury within the definition of “minor injury” in subsection (1) is deemed to be a minor injury if

(a)the claimant, without reasonable excuse, fails to seek a diagnosis or comply with treatment in accordance with a diagnostic and treatment protocol prescribed for the injury, and

(b)the injury

(i)results in a serious impairment or a permanent serious disfigurement of the claimant, or

(ii)develops into an injury other than an injury within the definition of “minor injury” in subsection (1).

(3)An injury is not deemed, under subsection (2), to be a minor injury if the claimant establishes that either of the circumstances referred to in subsection (2) (b) would have resulted even if the claimant had sought a diagnosis and complied with treatment in accordance with a diagnostic and treatment protocol prescribed for the injury.

(4)For the purposes of this Part, a minor injury includes a symptom or a condition associated with the injury whether or not the symptom or condition resolves within 12 months, or another prescribed period, if any, after the date of an accident.

And who has the burden of proving an injury is minor?  Not ICBC.  You must prove your injury is not minor if ICBC suggests otherwise with the regulations noting “In civil proceedings relating to an injury, the burden of proof that the injury is not a minor injury is on the party making the allegation that it is not a minor injury“.

BC Government's ICBC Law Labels Collision Brain Injuries "Minor"

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.

Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

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.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

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