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B.C. Attorney General’s Office says auto insurance changes ‘constitutionally sound’ despite lawsuit

Monday, April 08, 2019 @ 9:54 AM | By Ian Burns

A group representing trial lawyers in British Columbia has opened a new salvo against the provincial government’s controversial changes to the publicly owned Insurance Corporation of British Columbia (ICBC), arguing a number of provisions brought into force last year are unconstitutional.

In May 2018, the B.C. legislature adopted reforms to deal with a significant financial shortfall at ICBC, including a cap of $5,500 on minor injury claims, an increase in accident benefits and sending some matters to the province’s Civil Resolution Tribunal (CRT). But the Trial Lawyers Association of British Columbia (TLABC) has filed a claim in the provincial Supreme Court saying the cap regime is contrary to s. 15 of the Charter’s provisions surrounding equality under the law, because the minor injury designation is discriminatory on the basis of disability. It also says sending cases to the CRT will unduly restrict access to the courts, a violation of s. 93 of the Constitution Act, 1867.

TLABC president Ron Nairne

TLABC president Ron Nairne

“Access to justice is a basic human right guaranteed to us as Canadians under the Charter,” said TLABC president Ron Nairne. “The approach this government has taken to legislative and regulatory changes to address ICBC’s mismanagement problems violates the rights of British Columbians. This should be about protecting the public interest — not about protecting ICBC.”

Ujjal Dosanjh, former B.C. attorney general and premier, said he is “deeply concerned with the impacts on my fellow British Columbians of the impending legislation introduced by our current government.”

“Fixing ICBC is a priority, but not at the expense of access to justice and the Charter rights of British Columbians,” he said. “I felt compelled to speak out as I do not believe this government has clearly understood or described the impacts of this legislation on the citizens of B.C., especially those least able to advocate for themselves.”

John Rice, TLABC first vice-president

TLABC first vice-president John Rice

TLABC first vice-president John Rice said a number of injuries deemed minor under the new rules — including brain injuries and concussions, soft tissue injuries and psychiatric concerns — are “anything but,” and the only way a person can survive the minor injury designation is through a reverse onus obliging them to go through a complicated process of establishing their injuries represent incapacity or serious impairment.

“The concern we have is by doing this the government is bringing a heavy-handed legislative framework against a certain category of injury that is fairly arbitrary,” he said. “To give some perspective, you can have a hairline fracture to your pinky toe and have that deemed as not minor. But you can be in a car accident where your spouse or child is killed and you suffer PTSD as a result, yet your injuries are deemed minor and it’s up to you to go through a complicated process to prove they aren’t.”

Rice said the legislature has “given the CRT a specialized designation when it has no such expertise,” as many of the appointees have no particular legal or medical training.

“It’s principally an online portal for dispute resolution where they will be making findings of fact, and presumably findings related to credibility, having never met the claimant in the overwhelming majority of the cases,” he said. “The only way a court can interfere with a CRT ruling is if it’s a clear and overriding palpable error. So, unless it is just patently wrong, the judiciary is handcuffed from meaningful review.”

In an e-mail, the Ministry of the Attorney General said it fully expected the TLABC to launch a constitutional challenge against the ICBC changes.

“We respect the important role trial lawyers play in defending the rights of British Columbians. However, the changes we have made bring us into line with approaches that have been in place for years in many other provinces in Canada and around the world,” the Ministry said. “Lawyers in other provinces also challenged these types of reforms but were not successful. The government will defend this lawsuit because we are confident the legislative changes we have made are constitutionally sound and reflect good public policy.”

Rice said there have been challenges to cap regimes in Alberta and New Brunswick that were deemed to be constitutional in the past, but added those cases “were on different facts with different caps, and no CRT.”

“And those decisions predated an expansion and evolution in the body of constitutional law coming out of the Supreme Court,” he said. “So, from our perspective there is no modern comparison to a constitutional challenge of this sort.”

Margot Young, UBC School of Law

Margot Young, University of British Columbia

Margot Young, a professor of constitutional and human rights law at the University of British Columbia, compared the changes at ICBC to the provincial Workers’ Compensation Board, “in that it takes issues out of a civil court and suborns them to an institution with a limited table of compensation.”

“The government will have arguments it’s a much more efficient system, that it’s a more administratively sound approach to regularize and limit in a reasonable way what can be claimed from ICBC,” she said. “But the concerns [of TLABC] are nonetheless valid and ones the government needs to meet.”

Rice said it will be intriguing from a legal perspective what the court decides, but noted British Columbians are going to be left “holding the bag on this system which in effect punishes victims and makes them pay for bad drivers because injury caps are just an artificial ceiling on compensation.”

“It’s just an industry term,” he said. “It’s not based on making someone whole for the harms and losses you caused. It’s just an arbitrary ceiling.”