Civil Resolution Tribunal Misleading the Public About ICBC Claims?

From April 1, 2019 onward BC crash victims have had their rights drastically reduced.  One of the key rights stripped from British Columbians is the ability to go to Court.   If ICBC is treating you unreasonably and you turn to the Courts for resolution ICBC can steer you away from the judiciary and force you to go to the Civil Resolution Tribunal. The CRT is supposedly a separate but equal route to justice.  Its meant to replace the Courts.  TLABC Letter RE CRT Below are some concerning examples:

  • Inaccurate Definition of Serious Impairment

When browsing information the CRT shares with the public about  “minor injuries” they note as follows about ‘serious impairment’ What’s the problem with this?  I’ve discussed the actual legal definition of impairment here.  While it is onerous and captures many circumstances few would consider minor, it does not go so far as to require a person to be “unable to work” for 12 months as the CRT suggests. Instead of an absolute inability to work it has to result “in a substantial inability of the claimant to perform… 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”. It is possible for an individual to still work yet meet this test of impairment.

  • Misleading Definition of Diminished Earning Capacity

The CRT published the below worksheet for people to “calculate the amounts for your damages claim“.  In it the CRT erroneously summarizes the law of Diminished Earning Capacity. Claims for future Diminished Earning Capacity recognize that lingering injuries can reduce an individual’s worth in the market and negatively impact their earnings.  The principles behind such awards have been well summarized by BC Courts for years.   The CRT, however, has inaccurately labelled the award as one for “Future Income Loss” which is wrong in law and then erroneously states that such awards are for when “You are unable to work in the future because of the accident“.  The actual law allows recovery in circumstances far broader than this.

  • Misleading Definition of Non-Pecuniary Damages

The above worksheet also improperly discusses non-pecuniary damages.  Instead of using the proper legal head of damage the term ‘pain and suffering‘ is used which is only one of several factors that can be looked at by the Courts when assessing non-pecuniary loss.  The actual legal factors looked at when valuing non-pecuniary loss are well understood and far broader in scope than simply ‘pain and suffering’.

  • Incorrect Advice Regarding Documents Used to Prove Damages

The CRT suggests that “decision letters about fault and accident benefits from your insurer” are “Helpful documents for calculating a damages claim”. An insurer assessment of fault is irrelevant in assessing damages.  Relying on such a document does nothing to advance an injured party’s claim.   Such advice is erroneous and potentially harmful to a British Columbian looking to prove their losses. The assertion that “decision letters” from insurers about accident benefits are helpful documents is equally problematic.  While the existence and extent of available benefits can be relevant in assessing damages for BC collision victims a “decision letter” from an insurer has little to no value in this assessment and can even prove harmful if the insurer is voicing an unreasonable position.

  • Suggestions that insurers are fair

The CRT tells the public that Insurers make an initial assessment of fault and they “base it on the evidence“.   This certainly is not always the case and it is unusual for an supposedly independent tribunal to suggest otherwise.  In a claim for damages an insurers assessment of fault has no relevance whatsoever. The CRT frequently prompts applicants to continue negotiating with ICBC.  Instead of respecting the fact that an applicant to the CRT has a legitimate dispute in their claim they suggest continued negotiation could result in a “faster” and “easier” settlement.  They even go so far as to suggest that if settlement is not reached bad consequences can arise.  All of this creates an impression that representatives of the opposing party in the dispute are fair. It is unclear why the CRT is summarizing legal rights inaccurately and in a way that would favour ICBC.   The lack of true impartiality is one of the arguments being raised in the constitutional challenge against the CRT’s mandatory jurisdiction.  Misleading information such as the above strengthens that assertion.

 

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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.

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