B.C. Attorney General David Eby introduces former NDP cabinet minister Joy MacPhail as chair of the ICBC board Aug. 19, 2018. (B.C. government)

B.C. Attorney General David Eby introduces former NDP cabinet minister Joy MacPhail as chair of the ICBC board Aug. 19, 2018. (B.C. government)

Judge rejects taking lawyers out of minor ICBC injury cases

David Eby vows battle against ‘personal injury industry’

The chief justice of the B.C. Supreme Court has found that parts of B.C.’s vehicle insurance reforms are unconstitutional, particularly the shift of injury cases under $50,000 from courts to an online tribunal.

The Trial Lawyers Association of B.C. challenged legislation brought in by Attorney General David Eby to move smaller court disputes to the Civil Resolution Tribunal, which was originally set up to resolve strata property disputes. The lawyers lauded the latest ruling by Chief Justice Christopher Hinkson of the B.C. Supreme Court, which also questioned Eby’s core argument that court costs are a major driver of huge losses at the Insurance Corp. of B.C.

“The court has declared that it is unconstitutional for the government to simply re-assign the determination of accident claims to its own online tribunal, and out of the courts,” the Trial Lawyers Association said in a statement March 2. “In so doing, the court has provided a check on the government’s ability to create its own tribunal to decide claims against ICBC, while at the same time affirming the historic right of accident victims to pursue remedies for their injuries before the courts.”

Eby said Wednesday he will announce March 8 whether the government will appeal the decision, which his ministry estimates would cost $390 million more if disputes go back to B.C. Supreme Court. He said the decision won’t affect the NDP government’s promised ICBC rate reduction and COVID-19 rebates, which are currently being promoted in a series of TV ads.

Eby continued his combative position on what he called an out-of-control “multi-million dollar personal injury industry that we’re clipping the wings of.”

Hinkson rejected the government’s argument that injury cases have been clogging B.C. courts. He noted that while a third of civil cases filed in court were motor vehicle accident-related in 2019, fewer than one per cent of resolved injury claims actually went to trial between 2015 and 2019. And he also punctured the government’s argument that a surge of lower-value cases is pushing up ICBC’s costs.

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“The Attorney General argues the evidence shows that lower value claims in the range of $50,000 or less made up the vast majority of claims in the system even before the imposition of the cap on non-pecuniary damages for minor injuries,” Hinkson wrote. “In each of the five fiscal years ending in 2016 through 2020, the proportion of resolved bodily injury claims from pre-April 1, 2019 accidents that resulted in payments of $50,000 or less was consistently over 80 per cent, and only an average of about 15 per cent were litigated. The subset of this 15 per cent that were actually judicially adjudicated in trials were less than one per cent.”

Hinkson also ruled against an earlier bid by Eby to reduce court costs by limiting expert witnesses in injury cases, striking down that legislation in October 2019. The government chose not to appeal that decision and instead went ahead with the broader move of capping “pain and suffering” awards at $5,500 and shifting smaller injury disputes to the tribunal.


@tomfletcherbc
tfletcher@blackpress.ca

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