It’s not quite a case of Attorney General David Eby’s overhaul of the ICBC claim process driving into the ditch.
It’s more that the road to the full implementation of the reforms on May 1 is even more slippery and uncertain than first thought.
The ramifications of the attorney general’s second loss in B.C. Supreme Court, by way of a decision released Tuesday, make for some new questions about how vehicle crash cases in B.C. will be handled.
In the immediate fallout, B.C.’s Civil Resolution Tribunal said Wednesday it is putting 110 cases on “pause” following the court’s finding that it doesn’t have the constitutional authority to hear them.
The “pause for now” will also apply to all “minor” injury ICBC damage claims still being processed going back to April 2019. The Civil Resolution Tribunal reported 125 such cases in its first annual report, and that caseload was growing.
April was the date that body took over determining such awards under an NDP government reform aimed at curtailing legal costs and steering such cases away from the courts.
The Trial Lawyers of B.C. sued over the change. The B.C. Supreme Court has ruled that the government acted unconstitutionally by stripping the court of its jurisdiction.
The Civil Resolution Tribunal said that decision means it can no longer decide if an injury is “minor,” meaning it would be handled by the tribunal, rather than in court.
It also can no longer decide liability or injury and damage claims under $50,000.
The decision also eliminates the requirement that the courts automatically dismiss any such claims in order to divert them to the Civil Resolution Tribunal.
It’s not clear if all the tribunal’s previous decisions are voided. If so, it would further complicate the picture. Making the tribunal the mandatory route for lower-cost claims was projected to save almost $400 million when it was first announced.
The tribunal said it can still decide whether someone is entitled to accident benefits under the Insurance (Vehicle) Act, and also small claims accident disputes under $5,000.
It said the decision doesn’t affect its upcoming jurisdiction over the new enhanced benefit system, which starts May 1.
That comprehensive care model is a no-fault system by another name. It is designed to determine benefits for crash victims in a less adversarial way. It will edge lawyers further out of the picture and sharply reduce legal costs.
The government lost a similar case earlier on limits it imposed on expert witnesses called in accident cases, although it later engineered a workaround. The trial lawyers have a number of other possible challenges to the new system based on the premise that it limits people’s right to go to court.
Eby told reporters Wednesday the decision has no impact on the rate reductions that he has promised will kick in starting in May.
He said it also won’t change the plan for ICBC to issue COVID-19 rebates, as the projected savings from pushing people to the tribunal were not factored into those decisions.
He said his first reaction was: “Of course we’re going to appeal.” But his team advised taking some time, so the decision on whether to appeal will come Monday. An appeal could stay the decision until the case is resolved.
Implementing the reforms has become a cage match between Eby and the trial lawyers. They’ve won two rounds, but Eby said he expected them to fight every change because “they have a massive vested interest in the bloated and inefficient insurance system.”
He said “we’re clipping their wings” to provide lower rates.
No-fault systems have been ruled constitutional elsewhere in Canada and he’s confident B.C.’s version will hold up. The trial lawyers have been picking their shots to date, tackling specific aspects. But the earlier win likely contributed to the NDP’s decision to reverse course and bring in such a system. Their victories are coming at a cost.
Just So You Know: The Civil Resolution Tribunal offered some advice to clients who are waiting for some indication of what’s going to happen to their claims.
It’s bit ironic, given the whole thrust of the initative: “We encourage you to get legal advice.”
