Ian Mulgrew: ICBC changes put rights of injured at grave risk, lawyers warn

Credit to Author: Ian Mulgrew| Date: Fri, 07 Feb 2020 16:38:02 +0000

B.C. lawyers erupted in dismay at the announcement Thursday that the NDP minority government was restricting access to the courts, curtailing the right to sue, and imposing a no-fault-style auto insurance.

“After 30 years, ICBC is now going to pivot to this new model? I think that’s naive in the least,” said John Rice, president of the Trial Lawyers Association of B.C., which represents most of the province’s personal injury bar.

“It’s pretty stunning and disappointing. What this legislation is going to do is take away the right of British Columbians to go to court and get a fair settlement. The government wants to focus on getting legal costs and lawyers out of the system, but what it’s really about is protecting ICBC and protecting ICBC management.”

The new system will reward bad drivers and unduly burden the most vulnerable, Rice added.

Calling them “generational changes,” Attorney-General David Eby threw in the towel on fixing the management of the financially troubled Crown corporation and decided to dramatically switch insurance models.

The so-called no-fault scheme essentially offers quicker car repair and health-cost recovery without lengthy legal battles so the insurer can offer lower rates.

The NDP promised to say “no” to no-fault during the last election campaign, but Eby said ICBC is hemorrhaging too much cash to live up to that vow — more than $1 billion a year — and rates have gone up 50 per cent in the last decade.

“The sad reality is this represents the over-whelming burden of legal costs and dramatically inflating court awards on our insurance system,” the attorney-general said.

The proposed changes reintroduce limits on expert reports and will place caps on compensation for disbursements in litigation in the transition period.

They also contemplate a significant alteration in how disputes between accident victims and ICBC over compensation entitlements will be addressed by increasing the role of the Civil Resolution Tribunal.

“The Law Society is going to have a careful look at what is being contemplated,” said President Craig Ferris.

“We are particularly concerned about the potential impacts on those individuals who, due to unforeseen events, are injured and have a right to ensure that their compensation is fairly determined.”

The Canadian Bar Association-B.C. branch denounced the moves. It opposes no-fault insurance on the grounds it restricts the rights of injured victims to have their claims assessed based on their specific circumstances.

“Our system of justice is built on fairness and the acceptance of responsibility for our actions,” said Ken Armstrong, the Canadian Bar Association-B.C. branch president. “An innocent victim of an accident has a right to expect that the person at fault for the accident take responsibility for it. In a no-fault insurance plan, no one but the victims and their families bears the consequences of that accident.”

He said no-fault significantly reduced access to justice by making it harder for people to receive legal advice and representation to deal with the same insurer that the government admits needs a new Fairness Office.

“The ‘dumpster fire’ is a manufactured crisis — up until 2015, ICBC was the Crown jewel of public auto, it was generating a profit,” Rice complained.

“Really what their proposal is here is to make a much, much bigger fire in a much bigger and more powerful ICBC.”

He sneered at Eby’s proposed better benefits.

“I don’t know if it’s going to be attractive to people with brain injuries and serious injuries when they are told under this new legislation their claims are worth absolutely nothing from the perspective of compensating them for their pain and suffering. … Instead of getting lump-sum damages to go to the doctor they want or the physiotherapist they want, they’re going to get stuck with a WorkSafe-type scheme where they have to deal with the (Civil Resolution Tribunal), ICBC or some ombudsman indefinitely.”

Since becoming minister in July 2017, Eby has launched a full-out assault on personal injury lawyers.

Eby said getting “the legal costs out of the system” will allow ICBC to increase benefits 24 times.

He argued that ICBC had reduced losses and road collisions but rate increases were still inevitable and people were angry their rates were still going up.

Lawyers were to blame for the Crown corporation’s financial “dumpster fire,” Eby insisted, although he acknowledged the insurance giant that dominates the legal industry was not blameless.

“Their strategy of the last two years has failed,” Rice exploded. “This entire package was introduced by ambush. With no notice. The government campaigned on a promise of no, no-fault. They don’t have a mandate for this.”

Eby estimated some $400 million could be saved by changing the court rules around expert reports alone.

Yet he failed miserably in the last year to get judges and lawyers onside — losing in court and being publicly rebuked.

Under the new model, Eby said the injured will get the care they need without having to hire a lawyer, and out-of-control, sky-high legal costs will be eliminated.

The injured won’t, as they do now, have to lawyer up and sue to get the care they deserve, Eby noted as he unveiled his bumper-sticker program, “Affordable Rates, Enhanced Care.”

Motorists can expect a 20-per-cent decrease in rates next year, seemingly $400 annually on average, he added, and lawyers will lose the 25 to 33 per cent rake on settlements they get from contingency fees — some $500 million a year.

“What this means is people hurt, with brain injuries, children with spinal cord injuries, orthopedic fractures, amputations, burns, they get nothing for their pain and suffering,” Rice explained.

“Instead, in exchange for sacrificing that, not being made whole, they get to deal with ICBC in what they call a ‘care model.’ They’ll have to deal with ICBC indefinitely, to trust in them to provide the care that ICBC deems is necessary. The only real beneficiary of this policy is ICBC. The government suggests this most recent initiative will be constitutional, we’ll have to look at the legislation.”

John Rice, president of the Trial Lawyers Association of B.C. handout / PNG