Court Challenge Filed Against Arguably “Unconstitutional and Hence Illegal” ICBC No Fault Scheme

BC’s Attorney General has one heck of a track record when it comes to trying to strip the rights of British Columbians in favour of the provincial monopoly auto insurance corporation ICBC.  To date the Courts have not been particularly impressed with these “thinly veiled” attempts to take away the public’s rights to “improve the finances of ICBC”.

In 2019 the AG amended the rules of court without input from the profession to set a hard cap on how many expert witnesses a crash victim can use in trying to prove their case.  This was struck down as unconstitutional.

The government did not learn their lesson and tried to stack the BC Supreme Court system in ICBC’s favour by setting a 6% cap on disbursements plaintiffs can recover by way of a regulation under BC’s Evidence Act.  This was struck down as being contrary to administrative law principles and also being unconstitutional.

The Attorney General is also behind a scheme trying to take most cases away from federally appointed judges in the BC Supreme Court and using a provincial tribunal as a gatekeeper of who can go to court.  This has been declared unconstitutional by the chief justice of the BC Supreme Court with the BC Court of Appeal split on its constitutionality with the Supreme Court of Canada likely being the final arbiter of this law’s fate.

Now the BC Attorney General’s latest attempt to take away British Columbian’s rights is being challenged in new litigation.

Earlier this month Schober v. BC (AG) was filed in the BC Supreme Court.  The Plaintiff, Schoeber, was left paralyzed as a result of a vehicle collision.  His right to be properly compensated for his losses has been taken away by laws backed by BC’s Attorney General.  The law, in essence, took almost every crash victim’s right to sue negligent drivers away for collisions after May 1, 2021.  Schoeber, like an ever growing list of British Columbians, was caught by this time frame and is stuck with the payments ICBC agrees to give him and nothing else.  Schober argues having his right to full compensation being stripped coupled with having his rights to meaningfully challenge ICBC’s decisions in BC Supreme Court amounts to an “unconstitutional, and hence illegal” move by Legislative Assembly of British Columbia.

Schober advances two broad arguments.  He alleges these laws violate s. 15 of the Charter of Rights and Freedoms (a law that guarantees the protection of equality rights of Canadians including the right not to be discriminated against based on mental and physical disability) and further amount to an unconstitutional flex of the Province’s powers beyond what s. 96 of the Constitution Act allows (the law that sets the separation between the powers of Provinces vs the Federal Government).

The following short summary of the legal claims are plead:

(these laws) “are discriminatory: they reinforce, perpetuate and exacerbate the disadvantage of people disabled in vehicle accidents, by entrenching the economic impact of their disabilities and denying legal recognition to their pain and suffering. The discrimination brought about by the scheme is not demonstrably justified in a free and democratic society. It is a violation of s. 15 of the Canadian Charter of Rights and Freedoms (infra) that is not saved by s. 1.

Under the CRTA, the Supreme Court of British Columbia is substantially precluded from interfering with decisions made by the CRT under the auspices of its Review Power. The result is simple: under this scheme, it is the government that polices the government, when the rights of victims hang in the balance. And that self-policing comes about by way of unconstitutional ouster of the court: the CRT possesses a power exclusively within the purview of the superior court, and, by also precluding claims via the Claims Bar, in its totality the scheme encroaches upon the core jurisdiction of the superior court, in violation of s. 96 of the Constitution Act, 1867.”

The fate of these latest laws is not yet known.  Time will tell.

The full court filing can be found here Schober v BC(AG)

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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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