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 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:
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 –
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.
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.
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.
Today ICBC and the BC Attorney General were publicly boasting about how new laws are ‘doubling benefits’ to accident victims.
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 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.
