Highway 1 crash numbers double in two years in Fraser Valley

Attorney General David Eby should be focusing on policies that will prevent collisions rather than penalizing those who are injured on BC's roads with a cap on "minor injuries.“

Highway 1 crash numbers double in two years in Fraser Valley

Published on July 02, 2018 by Glenda Luymes

The number of crashes on Highway 1 between Langley and Chilliwack has doubled in the past two years, according to ICBC statistics obtained by Postmedia.

The report shows the number crashes on Highway 1 between 232 Street in Langley and Annis Road in Chilliwack — a four-lane stretch of highway — rose from 510 in 2015 to 1,100 in 2017.

Injuries and fatalities have risen, too. In 2011, 270 crashes resulted in casualties, while in 2017, 470 crashes led to someone being harmed. A total of 790 people were injured on the highway between Langley and Chilliwack last year. Information on fatalities was not available.

The dramatic increase in crashes and congestion has the mayors of Langley, Abbotsford and Chilliwack calling on the provincial government to widen the highway quickly.
“Our region is changing,” said Chilliwack Mayor Sharon Gaetz. “We’ve had an influx of people moving from Metro Vancouver to find affordable housing (and) we’re starting to feel the squeeze. “I hope the province takes action before the highway becomes gridlock all day, every day.”

The mayor said she often drives to Richmond for meetings. Five years ago, she would give herself an hour-and-a-half to get there. Now, she budgets three hours — one way.

“When you’re spending so much time on the freeway, it takes away from the time you can spend at home with your family,” she said.

Abbotsford Mayor Henry Braun called transportation one of the “most significant issues” facing his community. “It’s a mess out there,” he said.

Braun pointed to a Liberal promise to widen the highway to three lanes in phases, beginning with the stretch from 216th to 264th in Langley, and eventually all the way to Whatcom Road in Abbotsford. The NDP has put the plans on hold while it studies the issue.

“Rarely a day goes by that there’s not an accident,” said the mayor. “Something needs to be done. We can’t live like this.”

Eastbound traffic at 264 Street & Hwy. 1 on Friday. This is clogged despite being a widened section of the highway.

Jack Froese, the mayor of Langley Township, said he and his Fraser Valley counterparts have been lobbying the province to get highway widening “back on the table.”

“The Fraser Valley is growing rapidly and we don’t have the transit options that Metro does to get people out of their cars,” he said.

Froese said he understands widening can’t be done “all at once,” but he hopes the provincial government will continue to add lanes in phases to ultimately ease congestion.

In a statement, the Ministry of Transportation said it is committed to “improving this section of the Trans-Canada Highway so people can get to where they need to go without sitting in traffic.”

The statement pointed to project underway to widen the highway from four lanes to six lanes between 202nd Street and 216th Street through Langley — work that began under the previous government.

“In terms of expanding the highway past 216th Street, we are assessing the Highway 1 corridor as a whole through the Fraser Valley to determine the best way to cut down on congestion and increase safety,” said the statement. “The ministry considers collision data as well as traffic volumes (historic, current and predicted) when planning transportation improvements.”

No deadline was given for finishing the government assessment.

In the meantime, congestion has become an frustrating expectation for anyone travelling east of Langley on a regular basis.

“It’s unreal,” said Robert (Mukwa) Guiboche, a Fraser Valley tow truck driver. “It gets backed up at every exit, and it’s stopped whenever someone is broken down.”

Traffic volume coupled with impatient drivers make Guiboche’s job more dangerous than in the past.

“People don’t move over or slow down, they’re cutting around cars to get to the off ramps,” said the owner of Citywide Towing and Parking Control. “It’s sickening when you’re trying to hook up on the side of the road. All of us tow truck drivers want to get home safe to our families, too.”

Russ Jenkins, the deputy fire chief of the Township of Langley, said most of the crashes he goes to are rear-enders, calling it the “slinky effect” when traffic bunches up and slows down rapidly.

Congestion makes it more difficult for first responders to get to crashes, with cars often backed up a kilometre away as firefighters arrive, said Abbotsford fire chief Don Beer. “Compared to two years ago, the volume of traffic is incredible.”

Police advise uninjured drivers involved in a collision to drive their car to a “place of safety out of travel lanes, turn hazard lights on and call for assistance,” said Const. Mike Halskov of RCMP traffic services.

“When considering the volume of traffic moving through this corridor on a daily basis, there is bound to be the occasional collision,” he added.

Read the full story in the Vancouver Sun here

ICBC Claim Changes Won’t Fix Insurer’s Woes

Changes to ICBC could ruin people’s lives. Those injured on BC roads will only be victimized again by ICBC’s new injury caps.

ICBC Claim Changes Won’t Fix Insurer’s Woes

Published on June 7, 2018 by Richard McCandless

“I did not sign up for politics to work on car insurance.” David Eby, May 7, 2018.

Few of us have a deep understanding of the details of auto insurance, but the financial crisis at ICBC required Attorney General David Eby, the minister responsible, to become a reluctant quick study.

In May, the Attorney General achieved legislative approval for the most comprehensive changes to ICBC’s insurance scheme since the founding of the Crown corporation 45 years ago.

His objective was to reduce the cost of the compulsory basic insurance program, thereby avoiding the huge increase in insurance premiums that would have been necessary to avoid insolvency. The legislature, despite solid opposition from unrepentant and unapologetic Liberal members, approved the changes, with the Green Party supporting the government.

There is no question that a modification of the tort model, wherein the injured party can sue for compensation for loss of enjoyment of life (pain and suffering), was necessary to reduce the cost of claims and eliminate the requirement for a significant rate increase.

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However, it appears that the annual savings will be insufficient to rebuild ICBC’s capital reserves (equity) to provide an adequate buffer against future insolvency.

ICBC’s slide to insolvency

The financial crisis at ICBC began some five years ago when the cost of basic injury claims began to increase rapidly, spurred on by the rising number and cost of minor soft tissue injury (whiplash) claims.

The annual growth in claims expenditures required a significant increase in those basic premium rates to achieve a break-even operating result and to maintain a sufficient capital reserve to cover future claims.

The Liberal government’s unwillingness to reduce claims costs by changing the full tort insurance model, or to allow a rapid increase in basic insurance rates, exacerbated the crisis. Through a 2014 “rate smoothing” directive to the BC Utilities Commission (BCUC), the nominal regulator of basic insurance, the government deliberately adopted an unsustainable policy of subsidizing basic rates by depleting the basic and also the optional capital reserves.

Within weeks of the NDP forming government in July 2017, a report from Ernst & Young and ICBC’s 2016/17 annual report were released, and the public learned that both the basic program and the once-profitable optional program had suffered major losses, lowering the capital reserves to approximately half of the safe level.

Double-digit increases in both injury and vehicle damage costs were the primary reasons for the $600 million combined operating loss. The Ernst & Young report highlighted the rapid loss of the capital reserve and provided a range of options, from caps on pain and suffering to a full no-fault model, to reduce claims costs.

ICBC’s growing losses during the fall provided the impetus to adopt a “no-fault lite” mode and a streamlined claims adjudication process. The Attorney General outlined the details of the planned changes to the basic insurance model in early February, a few days before ICBC announced a shocking $1.3-billion projected loss for 2017/18. In keeping with ICBC’s reluctance to provide program-level information, the forecast did not differentiate between the basic, which is compulsory, and the optional programs.

What’s changed?

The changes are designed to reduce injury claims costs and stop the financial red ink. This is to be accomplished by limiting the cost of pain and suffering awards, removing the incentive to litigate less serious injury claims by increasing the scope and dollar limit for no-fault accident benefits (rehabilitation costs, wage loss, home care and related coverage) and by resolving disputed claims valued up to $50,000 faster and at less cost through a revamped Civil Resolution Tribunal (CRT).

The new model preserved the tort option for injuries that result in more serious impairment, but imposed a $5,500 cap on pain and suffering awards for “minor” injury claims. As the last province to abandon the full tort model, B.C. benefited from the experiences of other provinces which had already capped pain and suffering awards. Regulating the definition of a minor injury provides flexibility, and the CRT process encourages self-representation by the claimants.

The B.C. branch of the Canadian Bar Association, the Trial Lawyers Association of British Columbia and the affiliated organization Rights Over Arbitrary Decisions for British Columbians (ROAD BC) vigorously opposed the partial abandonment of the tort model, stating that the government was placing the burden of reducing ICBC’s costs on innocent victims injured in collisions.

The trial lawyers argued the government should make higher-risk drivers pay much more, and ICBC should find other savings to eliminate the budget shortfalls. They believe the changes are unconstitutional, which suggests an early court challenge.

Eby was confident the changes are legally sound and he defended the limitation on pain and suffering by asserting that the alternative was unaffordable rate increases. He also stated that the government would be making high-risk drivers pay more though, in reality, ICBC’s revenue from penalties on high-risk drivers resulting from traffic convictions is very small compared to vehicle insurance revenue.

ICBC’s financial crisis also prompted the Insurance Bureau of Canada (the lobby group for the private insurers) and the Canadian Taxpayers Federation to call for privatization of the compulsory basic insurance, claiming competition would somehow result in lower prices.

However, even if ICBC’s monopoly was abolished, no profit-oriented insurer would contemplate entering the basic market without limits on pain and suffering, or without major rate increases (and preferably both).

Are the changes enough to restore ICBC’s finances?

There is no question that our public auto insurer was facing insolvency because of the growth in injury claims costs under the tort liability model. The NDP government decided that capping the pain and suffering payments, together with a simplified dispute process for claims of lesser value, would lower claims costs enough to avoid a $400 rate increase and to fund enhanced no-fault accident benefits (which in turn would reduce the number of claims).

Unfortunately, ICBC does not provide detailed information on its compulsory basic insurance or its optional program in its public reports or its three-year service plan forecasts. In addition, little analytical information was provided to support the assertion that the new “no-fault lite” model will achieve the $1 billion in annual savings as outlined in ICBC’s most recent three-year forecast. Since the $5,500 cap will not take effect until April 2019, we will not know if the changes to the model are producing the required savings for two to three years.

The ICBC forecast also shows that the government is not attempting to rebuild the depleted capital reserves over the next three years. Using ICBC’s latest forecast, and including the changes to the basic model, I have estimated that by the end of the 2019/20 fiscal year, ICBC’s combined capital reserves will be approximately $5 billion below the satisfactory level. To eliminate the gap would require the addition of about $1 billion for the next five years in the form of a 20 per cent surcharge on both the basic and optional rates.

The government’s plan avoids any suggestion that it will reimburse ICBC for the costs of administering drivers licences, traffic enforcement and provincially mandated programs, such as the seniors discount. If the government paid $200 million for these services, the capital surcharge could be lowered to 12 per cent.

Operating with dangerously low capital reserves leaves the government open to criticism from the private insurers that ICBC has a pricing advantage for the optional program (because the private insurers must maintain a higher capital reserve), and increases the risk of a taxpayer bailout if there are adverse financial conditions.

Time will tell if the changes achieve the intended objectives or whether the answer to affordable premiums lies in the full adoption of a no-fault insurance scheme.

Read the full story in The Tyee here

Changes to ICBC payouts for people involved in serious crashes

What ICBC isn’t telling you: Even injuries like psychological & psychiatric disorders and chronic pain can be deemed “minor,” resulting in compensation being capped at $5,500.

Changes to ICBC payouts for people involved in serious crashes

Published on June 1, 2018 by Sonia Aslam and Mike Lloyd

NORTH VANCOUVER (NEWS 1130) – Some changes from ICBC for people get who get payouts after being involved in a crash.

The province says anyone seriously injured in a crash on or after January 1, 2018 will now be eligible to get up to $300,000 towards their medical care and recovery — that’s double the previous amount.

“This is the first major improvement to ICBC’s accident benefits in more than 25 years, made possible by reining in out-of-control legal and other costs, which will also put ICBC on the road to fiscal sustainability,” says Attorney General David Eby.

Jane Dyson with the BC Disability Association says the DABC has been advocating for changes like these for more than a decade.

“This is a huge improvement to what people have had to live with in previous years.”

However, she believes the government could do better. “We worked for many years to convince both governments and ICBC of the need for this change and it wasn’t until last year that we really started making headway and we were told ‘Yes, we agree with you’,” she says.

“If you have a catastrophic injury and you require a very complex wheelchair you might want to buy [new] transportation… When you think that a very high-functioning wheelchair can cost $35,000, $40,000, maybe even $50,000 and will last five or six years, you can see how inadequate the previous rate was.”

Victoria says ICBC, which is still struggling with its multi-million debt, is shifting its focus to “care-focused insurance.”

“One that makes taking care of people injured in a crash the top priority, with more money for the treatments and support they need to get better, and firm control on legal and autobody repair costs,” Eby explains.

The province adds other changes to accident benefits will come into effect in April 2019 — including an increase in weekly wage loss payments for people unable to work.

These additional improvements will include increases to the funeral cost and death benefits.

Read the full story on News 1130 here

Advocates, lawyers say ICBC minor injury caps could hit victims at their weakest

Attorney General David Eby's new legislation will negatively impact those injured on the road even if they are not at fault. Shouldn't changes to ICBC focus on reducing the 900+ car collisions in BC every day?

Advocates, lawyers say ICBC minor injury caps could hit victims at their weakest

Published on May 31, 2018 by Katya Slepian

Legal experts and disability activists alike are worried about the toll minor injury caps could take on vehicle collision victims in the province.

Ronald Nairne, of Burnaby’s Giusti Nairne law firm, takes issue with the victim of a car crash being treated differently than someone hurt in any other accident.

“Simply because I’m in a car, my damages are being limited,” said Nairne, who’s part of R.O.A.D. BC, a coalition of British Columbians who are committed to protecting the rights of anyone who becomes injured on our roads and ensuring accountability for ICBC.

He pointed out scenarios in which he’d have more options for redress if he wasn’t in a vehicle.

“If I go onto my neighbours property and there is a gigantic hole in (sic) the property that’s unsafe and I step in that hole and twist my ankle, fall down and hurt my back and sue my neighbour… the judge says that was unsafe, the neighbour’s responsible for that and you have a minor injury, I’m going to award you $25,000,” said Nairne.

“If I get that same exact injury, but I get injured in a rear-end accident, I’m only going to be eligible for $5,500.”

The province introduced the idea of minor injury caps for ICBC in February, as a way to cool the financial “dumpster fire” of the provincial auto-insurer and stem its losses, which the province said would amount to $1.3 billion this year.

Attorney General David Eby said that the caps are supposed to save ICBC a much-needed $1 billion a year as annual injury claims have risen from $3 billion in 2014 to almost $4 billion in 2017.

The province defines a “minor injury” as an abrasion, contusion, laceration, a pain syndrome or a psychological or psychiatric condition that does not result in a serious impairment or a permanent serious disfigurement of the claimant.

An Attorney General spokesperson said that all conditions, from “cuts to psychological and psychiatric conditions resulting from a collision can vary in impact, from minor to severe” and that each would be assessed on a case-by-case basis.

READ MORE: ICBC rates could go up 30 per cent by 2019: report

But the CEO of the People in Pain Network explained capping minor injury costs only takes advantage of people when they’re at their weakest.

“I just worry about the fact that people can look really well and be really suffering.

“I just think that there’s going to be a lot of people caught in no-man’s land,” said Devine.

The People in Pain Network works with people who have chronic pain and Devine said that’s the group she’s most worried about with the new rules.

The province defines a minor injury as an abrasion, contusion, laceration, a pain syndrome or a psychological or psychiatric condition that does not result in a serious impairment or a permanent serious disfigurement of the claimant.

“People have a lot of trouble now getting doctors to believe that they chronic pain, never mind if you add a complication to the situation and make it more difficult for people to get the help that they need,” said Devine.

She’s worried that minor injuries could grow into major conditions.

However, a ministry spokesperson said that “at any point during recovery, a medical professional can determine if an injury diagnosis, including a mental health injury due to a collision, has changed and should no longer be considered minor.”

While Devine agrees that’s a good step, she wonders how it would turn out in reality.

“If they decide that this is a minor injury and it turns out not to be, the hoops and the process that they have to go through to get it reclassified is in a lot of cases really overwhelming for people,” she said.

“Or it would be denied and denied and denied and years go by and the window to improve their condition is lost.”

An Attorney General spokesperson said that collision related victims can challenge ICBC’s decision “at the independent Civil Resolution Tribunal and have the matter resolved in months, not years.”

Read the full story on Surrey Now here

Reasonable Doubt: How will new B.C. laws affect ICBC and you?

Despite growing vocal opposition, two bills quietly became law that fundamentally changes the rights of anyone who gets injured on BC roads—whether they are drivers, passengers, cyclists, transit users, or pedestrians.

Reasonable Doubt: How will new B.C. laws affect ICBC and you?

Published on May 25, 208 by Kevin Yee

Dumpster fire! $1.3 billion lost! It’s been several months since we first saw these jarring headlines about ICBC. Since then, this news story has fallen off the front pages.

But last week, two bills quietly became law. They are game changers. They fundamentally change the rights of anyone who gets hurt using our roads—whether they are drivers, passengers, cyclists, transit users, or pedestrians.

First, let me explain the system we have today. Right now, anyone hurt in a car accident in B.C. can seek certain benefits from ICBC. Often, these benefits help offset medical costs. But I want to focus on another type of claim because that is where the controversy is.

Right now, if the injured person is not at fault for the accident, they can also seek damages. This can include compensation for pain and suffering and for lost wages. Like any dispute, this claim pits one side against the other. It is up to both sides to try and resolve the dispute. ICBC may offer a certain amount and the injured person may agree to it. But with two opposing sides, you will get disagreement at some point. It’s overly simplistic and just plain wrong to blame one side for these disputes. Claimants aren’t inherently greedy or fakers. Let’s not forget that they are the victims injured in the accident. That said, ICBC isn’t inherently unfair. Without a court order, ICBC isn’t required to pay whatever it is that the claimant seeks.

If the two sides are deadlocked, the claimant can take their case through the courts. That’s when an ICBC claim becomes a lawsuit. The court process gives claimants the opportunity to make their case and gives ICBC (and drivers being sued) a chance to respond.

The vast majority of lawsuits settle without going to trial. That’s because, along the way, parties negotiate with a better sense of the risks of trial. If it goes to trial, both sides can present evidence and let the court decide on what’s fair. When deciding, the courts are guided by previous decisions of similar court cases. This is how the typical personal-injury lawsuit is handled right now.

So what’s changed? With the passing of Bill 20 and Bill 22 last week, your ability to seek fair compensation has undergone a fundamental shift. This applies to anyone injured in a car accident in B.C. from April 1, 2019, onwards.

The new law introduced a cap on compensation for cases falling under the definition of a “minor injury”. This definition is not a medical definition. It’s created by the bill itself. ICBC will decide whether this definition applies to you.

Bill 20 defines an injury as “minor” if there is no permanent serious disfigurement and if any physical or mental impairment is resolved within 12 months of the accident. Again, this threshold of 12 months isn’t a medical definition. It’s set by the government and can be changed without further public debate.

The definition of a “minor injury” specifically includes pain syndromes and psychological conditions. The list of syndromes and conditions labelled as “minor injuries” can be expanded by the government without further debate.

If ICBC deems your injuries as minor in this new system, your damages are capped. This cap is for nonpecuniary damages—compensation for a person’s loss in general, such as their pain and suffering and their loss of enjoyment of life. The government announced it will cap this at $5,500; this can change without further debate.

If ICBC decides your injuries are minor, your fight with ICBC will be drastically different. Instead of court, you will go to the B.C. Civil Resolution Tribunal (CRT). I wrote about the CRT when it was first introduced in 2015 and then to follow up with its chair, Shannon Salter, in 2017. That was back when the online tribunal handled strata disputes instead of personal-injury cases. Now the CRT will also decide whether to uphold ICBC’s designations of minor injuries.

There’s another aspect of the CRT that is important. On top of the damages cap for pain and suffering of “minor injuries”, the CRT has a limit on what it can award in total when determining all other damages (e.g., lost wages). The government announced the CRT’s limits as $50,000; they can change this as well without any more debate.

Let’s say a claimant fights ICBC and convinces the CRT to overturn a designation of “minor injury”. Then, the damages cap on pain and suffering doesn’t apply. They will still be up against this CRT limit on total damages. If the claimant’s case justifies compensation beyond that CRT limit, then the only way to get that full amount will be to go through the courts. But hold on. It would be the CRT that decides whether to allow the claimant to continue their claim in the courts.

I suppose it’s tempting not to care about these changes. After all, no one is directly affected right now. This only affects people injured in accidents beginning next April. We don’t know who they are—the accidents haven’t happened yet. And no one ever expects to get in an accident. But, sadly, those accidents will happen. For those injured in them, they’ll see firsthand how their right to fair compensation has been affected.

Remember, all these changes were supposed to address ICBC’s financial losses. Labelling injuries as minor, capping damages, and requiring the CRT may help cut ICBC’s losses or it may not. Assuming that it does, will these changes correct a wrong that was the root of ICBC’s financial problems? Or are they just a Band-Aid fix for some greater problem? If it’s the latter, then the real question will be whether this will all be worth it.

A word of caution: you should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer.

Read the full story in The Georgia Straight here

Capping damages

Capping injury claims does nothing to prevent the over 900 car collisions in our province every day. Changes to ICBC should focus on reducing the number of car collisions rather than negatively impacting those already injured.

Capping damages

Published on May 22, 2018 by Elizabeth Raymer

Non-pecuniary damage caps are widely used across Canada, but personal injury lawyers say accident victims are paying the price.

It’s been 40 years since the Supreme Court of Canada released its trilogy of rulings that affected the way non-pecuniary damages have been awarded in Canada. Fearing an escalation in damages awards, those rulings limited the maximum amount of non-pecuniary damages a plaintiff could receive in a civil action.

Most jurisdictions in Canada have seen caps placed on claims in motor vehicle accidents, through provincial or territorial insurance legislation. British Columbia has been the last remaining jurisdiction in Canada to operate on a pure tort system, with no caps set on damages except for what the Supreme Court set in its trilogy in 1978, says Ron Nairne, a partner at personal injury firm Giusti Nairne in Vancouver and vice president of the Trial Lawyers Association of British Columbia.

But in February, the B.C. government announced it would cap pain and suffering claims for minor injuries in motor vehicle accidents at $5,500, which members of the personal injury plaintiffs’ bar in the province oppose. In Ontario, changes to the Insurance Act in 2016 saw benefits paid to accident victims reduced “dramatically,” says Patrick Brown, a partner at McLeish Orlando LLP in Toronto.

And elsewhere in Canada, plaintiff-side lawyers agree that caps on minor injury claims can place undue hardship on plaintiffs and may not consider the effects of minor injuries over time.

In British Columbia, the new NDP government’s announcement that it will introduce a cap on minor injury claims in automobile accidents was a result of a financial crisis at the Insurance Corporation of British Columbia, a provincial Crown corporation that provides basic auto insurance for British Columbians. In 2014 and 2015, Nairne says, there was a 23-per-cent spike in the motor vehicle accident rate in B.C., which had a negative impact on the bottom line of insurers. The ICBC’s loss for this fiscal year is now expected to be $2.2 billion “when only months earlier they had announced an [anticipated] loss of $300 million,” says Nairne.

The Trial Lawyers Association of B.C. and about 70 health-care providers and individuals opposing the proposed cap have banded together in a coalition called ROAD BC — or Rights Over Arbitrary Decisions for British Columbians.

“We’re saying have an independent review,” Nairne says. The B.C. government has benefited from the ICBC’s revenues, and, he adds, “one of ICBC’s more dubious assumptions is that accident rates will continue to increase.

“Our fundamental philosophical opposition to what the government has announced is [that] the effect is to shift financial burdens to people who are injured rather than the bad drivers who caused the accident,” Nairne says. “That’s fundamentally wrong and at odds with the tort system and with what the government says it wants to do — reduce bad driving.”

In Ontario, McLeish Orlando’s Patrick Brown says that fatality rates due to motor vehicle accidents reached a record high in 2017, at least in part due to the increase in pedestrians and bicyclists in cities such as Toronto and the speed of vehicles. “Toronto is less car-free in its urban core than other cities,” he notes.

Last September, NDP MPP Cheri DiNovo introduced a private member’s bill designed to prevent injuries and deaths among vulnerable road users including cyclists, pedestrians, people in wheelchairs, emergency responders on the road and road construction workers. The bill was supported by a coalition of citizens’ and bicyclists’ groups. Days earlier, Brown, a member of the coalition, had spoken at a press conference, calling on the attorney general to follow several U.S. jurisdictions in implementing a vulnerable road user law. The initiative did not meet with success.

“If you kill a pedestrian with your car, there’s a huge likelihood that you won’t be charged; though if you are, [you] will walk away with a $500 fine,” says Brown.

Injuries from motor vehicle accidents in Ontario are classified as minor, non-catastrophic and catastrophic, and 85 per cent of claims are for minor injuries, Brown says. In 2010, minor injuries were capped at $3,500, but in 2016, insurers said, “we want to lower the benefits available for serious injuries” as well, Brown says.

“Before 2016, a person who was catastrophically injured . . . had $2 million worth of benefits to pay for medical rehabilitation and attendant care” and loss of income. That cap was then lowered to $1 million. The cap for non-catastrophic injuries, which had been $100,000, was reduced to $65,000, he says.

Brown says the push to lower caps, driven by the insurance industry and supported by the government, is due to most of the driving public wanting low insurance premiums and insurers’ concern for their bottom lines. But an insurer’s profitability is also dependent on how efficiently the company is run, Brown says. “A lot of people feel that before you start attacking benefits, why not look at the efficient companies, which are operating at a profit,” by effectively employing new technologies, for example.

“The easy solution is to cut benefits, but it’s not the right solution.”

In Alberta, the last tort reform was implemented in 2004 and the cap for minor injury claims set at $4,000, says James Cuming, managing partner of Cuming & Gillespie in Calgary. With annual increases for inflation, the cap is now $5,080, he says. Prior to 2004, Alberta had an open tort system with “no restrictions whatsoever,” consistent with other jurisdictions, Cuming says.

Following the implementation of the cap for minor injuries, “approximately 85 per cent of claims fell into the cap and were removed from the system without any litigation being pursued,” says Cuming, owing to the cost of litigation. Accidents benefits have given individual plaintiffs direct access to treatment and payment for minor injuries, he says.

Alberta is currently reviewing its minor injury regulations in a process that began a few years ago, and “there is extreme pressure from insurers to modify the cap and make it more restrictive by definition, as opposed to financially,” Cuming says. “It appears the goal of the insurers would be to exclude the psychiatric injuries, TMJ [temporomandibular joint] injuries and chronic pain arising from soft-tissue whiplash-type injuries.” He anticipates the province’s regulations will be amended in the not-distant future.

Raymond Wagner’s law firm, Wagners, handles personal injury cases in Nova Scotia as well as Prince Edward Island and New Brunswick. The Maritime provinces have seen two sets of caps for minor injury claims, the first in 2003. A “more liberal regime” was introduced in Nova Scotia in 2010, in New Brunswick in 2013 and in P.E.I. in 2014, Wagner says, with the minor injury claim cap set at $7,500 (now higher with inflation).

Few of these minor injury cases make it to court, Wagner adds, and they are usually settled through settlement conferences, mediations and straight negotiations with insurance adjusters.

Although it’s not a big jump distance-wise from Prince Edward Island to Newfoundland, that province has a rather different insurance scheme for motor vehicle accidents than do its Atlantic neighbours. But while there are currently no caps on claims in Newfoundland and Labrador, that may be about to change.

The government there has reportedly asked its Public Utilities Board to review all aspects of its motor vehicles insurance program, says Ernest Gittens, senior partner in Gittens & Associates in St. John’s. “Are the rates appropriate? Do we need to rein in the payment of injury awards to collision victims?” Gittens says these questions appear to have been prompted by the taxi industry, which claims its premiums have gone up substantially.

Back in 2004-2005, he says, when these same questions arose, the insurance industry could convince the other Atlantic provinces that it was necessary for them to put caps on claims for the survival of the industry. What followed in those provinces was the cap of $7,500 for a minor injury. But in Newfoundland and Labrador, during the premiership of Danny Williams, the government decided to instead go with a $2,500 car insurance deductible.

Benefits paid in motor vehicle accidents have ranged from $5,000 to $10,000 of compensation for minor injuries to $30,000 to $40,000 for injuries that require more medical treatment and last for years. “They’ll be the ones most affected by the proposed cap,” Gittens says.

Like other plaintiff-side personal injury lawyers interviewed for this report, Gittens is concerned about the impact of caps on plaintiffs, and the profit margins of insurance companies.

In 2015, he says, there were about 50 insurers in Newfoundland and Labrador, and the premiums they charged drivers amounted to $417 million to $418 million. About 16 insurers cover most of the premiums, he says, “but it’s really only four companies providing 84 per cent of the coverage in the province. . . . Seventy-seven per cent of the premiums paid was what it took to cover the claims that were made. You end up with the industry making about 23 per cent on the $400-plus million for the industry.”

On the flip side, he says, there is no organized movement of injured people, and he wonders who will give the Public Utilities Board information on the impacts on individual claims of capping or increasing the deductible.

In Nova Scotia, Wagner notes, the under- and unemployed — “the people on the financial margins of society” — have been most affected by the caps on claims. “They don’t have disability [benefit] plans. . . . This is one of those so-called tort reforms that really impact people who can least afford to be further marginalized.”

Read the full story on Canadian Lawyer here

UNPOPULAR OPINION: Here’s why the changes to ICBC’s injury claims are… not good


UNPOPULAR OPINION: Here’s why the changes to ICBC’s injury claims are… not good

Published on May 16, 2018 by Kyla Lee

Now that the BC Government has passed the amendments to the Insurance Vehicle Act, the clock begins to count down for those who want a fair insurance claim. And after the legislation is enacted and in force and effect, British Columbians with accident claims will lose their ability to access justice.

The changes to ICBC’s governing legislation in British Columbia remove many cases from the courts. The Insurance Vehicle Act has been amended to divert insurance claims from the court to British Columbia’s Civil Resolution Tribunal.

The Civil Resolution Tribunal is designed to adjudicate small claims cases where the value of the claim is $5000 and under. However, pursuant to the Civil Resolution Tribunal Act, the dollar value of claims the tribunal may hear is prescribed by regulation. This means that it can be changed with very little difficulty, almost at any time by Government.

The use of regulations is not unintentional or by accident. It was very carefully designed this way. And the reason why becomes apparent when one looks at the provisions of the Insurance Vehicle Act that have now been passed by the BC Government. In the changes, the statute gives the power to adjudicate claims for “minor injuries” to the Civil Resolution Tribunal.

The definition of minor injury is as follows:

“minor injury” means a physical or mental injury, whether or not chronic, that

(a) subject to subsection (2), does not result in a serious impairment or a permanent serious disfigurement of the claimant, and

(b) is one of the following:

(i) an abrasion, a contusion, a laceration, a sprain or a strain;

(ii) a pain syndrome;

(iii) a psychological or psychiatric condition;

(iv) a prescribed injury or an injury in a prescribed type or class of injury;

And while at first glance it may seem fine to have a tribunal adjudicate claims involving injuries worth $5000 or less, it is not conceivable that psychological or psychiatric conditions or pain syndromes are generally worth less than that amount. However, we know that ICBC will push for these claims to be litigated under the Civil Resolution Tribunal.

There is existing legislation already in place that requires that all small claims actions proceed through the jurisdiction of the tribunal. And even if the injured person files their claim in BC Supreme Court, there are consequences in the new legislation, which states:

If a party brings or continues any proceeding in the Supreme Court in respect of liability and damages in relation to an accident and the settlement or award is less than the tribunal limit amount, the costs, including disbursements, that may be ordered are limited to an amount that would have been permitted in the tribunal proceeding by order of payment of expenses under section 49 [order for payment of expenses].

Any lawyer with knowledge of this area of law knows that court costs are significant, and recovering only those court costs that would be payable in the tribunal is likely to make any award for damages completely eliminated by virtue of the additional costs.

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.

Anyone with even an iota of knowledge about mental illness knows that John’s depression and Jane’s depression can be very different beasts. And yet under the changes to the insurance law in British Columbia, John’s depression and Jane’s depression can be interpreted as the same.

It does not end there. In British Columbia, there is a bothersome piece of legislation called the Administrative Tribunals Act. This statute makes it harder to show that a tribunal which is enacted under the Act acted unreasonably. Legislating around the Supreme Court of Canada’s decision that reasonableness is what a court should consider, the Administrative Tribunals Act imposes a burden on an applicant for judicial review to show that a decision was patently unreasonable.

This is helpfully defined in the legislation as follows:

For the purposes of subsection (2) (a), a discretionary decision is patently unreasonable if the discretion

(a) is exercised arbitrarily or in bad faith,

(b) is exercised for an improper purpose,

(c) is based entirely or predominantly on irrelevant factors, or

(d) fails to take statutory requirements into account.

So even if the decision was legally unreasonable, and even if no well-informed adjudicator could come to that conclusion, the decision of the Civil Resolution Tribunal over accident claims can only be overturned by a court if there was misconduct, arbitrariness, an improper purpose, or if it was irrelevant or outside the statutory requirements.

While it is foreseeable that some cases may well meet this standard, most decisions that are blatantly wrong will simply not rise to the defintion set out in the Administrative Tribunals Act for judicial intervention.

And all of this is set against a backdrop of a sixty-day limitation period, meaning that a person only has two months from the time of their accident claim to seek a judicial review of the decision. This is an extremely short period of time, taking into consideration the fact that inevitably people who have bona fide mental illness as a result of their accidents will be swept up in this mess.

Remember too that the tribunal also has the right to decide whether a claim is within its jurisdiction, which means that even the determination of whether a case should be heard by the tribunal is subject to judicial review on this very high standard.

It is inevitable that the law will be constitutionally challenged. But history tells us that constitutional challenges to the shifting of traditional court processes to administrative tribunals have been largely unsuccessful.

The BC Government has passed legislation that is deeply flawed. And while the attention paid to this has, by and large, surrounded the definition of minor injury the legislation is significantly more problematic when it is viewed in context with other pieces of legislation that function around it.

The result will be that those who have accident claims in BC are denied justice. And that is simply wrong.

Read the full story on Vancouver Is Awesome here

New index measures quarterly premium rate trends in Canadian personal lines

If you think caps on "minor injury" claims will lower car insurance rates in BC, think again.

Auto insurance rates in Alberta increased year-over-year 5.8% on average from Q1 2017, and that's with a cap.

New index measures quarterly premium rate trends in Canadian personal lines

Published on May 16, 2018 by Jason Constant

Applied Systems has released its Applied Rating Index, measuring the quarterly premium rate trends being experienced by consumers, brokerages and insurers across the Canadian market.

Stephane Lacasse, vice president of product management for Canada and rating products with Applied, told Canadian Underwriter in a briefing before the index’s release Wednesday that the rate insights will enable brokerages to provide guidance on expected premium rates during renewals and when evaluating new policies. For insurers, it will provide a data-backed reference point to determine competitive rates.

Calling it the “Canadian insurance industry’s only data-driven index to provide insight into premium rate change,” Applied said that the index measures average premium rates for personal auto and property lines of business on a quarterly basis. The report analyzes more than 1.3 billion quotes completed, measuring the increase or decrease in average premium rate trends across the country. Applied reports that the index, which is fully anonymized, represents more than 80% of the brokerage market and 675 insurer rating plans written by brokers.

“The Applied Rating Index depicts the best representation of how consumers are impacted by premium changes based on real consumer quotes,” Lacasse said. Other reports may report an average of premium changes for all insurers, Lacasse said, noting that this differs from Applied’s index, which represents the average of the top 3 insurers quoted to a consumer. In addition, other reports may have rate filings effective at different times, depending on insurers and may not accurately reflect premiums changes within the reported quarter.

In Q1 2018, average premiums for both personal auto and property lines increased compared to the same quarter in 2017. Notably, each province experienced an increase in both personal auto and personal property except for the personal auto lines in the Atlantic provinces and personal property lines in British Columbia. Key findings include:

Personal auto: In Q1 2018, personal auto premiums increased by 2.2% versus Q1 2017. Personal auto premiums declined -1.6% versus Q4 2017.
Personal property: In Q1 2018, personal property premiums increased by 2.9% vs. Q1 2017. Personal property premiums increased by 0.5% versus Q4 2017.
Provinces: Average premiums for personal auto and personal property increased in nearly all provinces over the past year.
Some provincial highlights (Q1 2018 premium rates compared to Q1 2017):

Personal auto premium rates in Alberta increased year-over-year 5.8% on average; personal property rates in Alberta increased 7.9% on average;
Personal auto premium rates in the Atlantic provinces decreased 2.5% on average, while the average increase in personal property was 5.5%;
Increase in personal auto in Ontario was 1.5%; personal property was similar at 1.6% increase on average;
In Quebec, personal property premium rates increased 0.1% year-over-year on average, while personal auto rates increased 5.2%;
B.C. saw an average 0.7% decrease in personal property rates;
Saskatchewan and Manitoba saw a 1.4% increase in personal property rates.

Read the full story on Canadian Underwriter here

Protest held outside the Surrey office of MLA Jinny Sims

More than 200 people attended a rally last week against injury caps – held outside the Surrey office of MLA Jinny Sims​. Attendees included psychiatrist Dr. Greg Passey, who is among a growing group of medical professionals speaking out against this legislation.

Protest held outside the Surrey office of MLA Jinny Sims

ROAD BC petition drop at Attorney General David Eby's office

Earlier this week, we delivered a petition to Attorney General David Eby's office, signed by thousands of concerned British Columbians. We join them in saying "no" to his decision to cap minor injury claims.

ROAD BC petition drop at Attorney General David Eby's office