Recently, the BC Government admitted their injury caps plan is really just ICBC’s plan: “We couldn’t have done it without the assistance of ICBC… They were instrumental in this process.” – David Eby

This disregards years of ICBC mismanagement, a highly-publicized “dumpster fire” and countless stories of how ICBC has consistently put their bottom line ahead of what’s fair for British Columbians. The BC government is trusting ICBC, but have they earned it?

Vaughn Palmer: New ICBC legislation will face inevitable legal challenge

Published on April 24, 2018

VICTORIA — The New Democrats relied heavily on advice from the Insurance Corp. of B.C. in crafting legislation to cap payouts to victims of minor injuries and burgeoning legal costs, Attorney-General David Eby confirmed Monday.

The troubled auto insurance corporation supplied comparisons to what has worked elsewhere, and costed the options in what has been characterized as a “lite” version of no-fault auto insurance.

“We couldn’t have done it without the assistance of ICBC,” Eby told reporters at the release of the enabling legislation Monday. “They were instrumental in this process.”

I’m sure they were. ICBC has lobbied successive governments on no fault, shorthand for a system that limits claim costs by capping payouts and minimizing litigation.

The corporation persuaded the New Democrats to go that route the last time they were in power, only to see the drive turned back by a well-funded campaign from trial lawyers.

The government-owned auto insurer floated three variations on no fault when the B.C. Liberals took over from the New Democrats. But then-Premier Gordon Campbell squashed the notion in a letter to the ICBC board: “The government will not be considering such options at this time.”

Nor did the Liberals embrace such options under subsequent Premier Christy Clark, never mind an emerging financial crisis at ICBC and comparable jurisdictions having already gone the route of limiting payouts for minor injuries and litigation.

On taking office after a B.C. Liberal-authored financial crisis at ICBC, the New Democrats did face up to the need to finally act to contain costs.

The result was two pieces of legislation tabled Monday, one addressing the cap on settlements and other costs, the other providing for minor claims to be channelled into a less expensive dispute-resolution process.

But as legislative packages go, this one raised as many questions as it answered, being awash in generalities with specifics left for the cabinet to define by regulation at a later date.

Indeed, the government news release provided more detail than the bills.

The release promised that the legislation “will simplify dispute-resolution processes for cases under $50,000” and “introduce a limit of $5,500 on pain-and-suffering payouts for minor-injury claims.”

Neither dollar figure appears in the text of either piece of legislation. Instead, it was left to the “Lieutenant Governor in Council” (that’s the cabinet) to write those amounts into regulations at an unspecified later date.

The New Democrats backtracked on earlier specifics regarding minor injuries.

Eby initially promised “a clear, legal definition of what constitutes a minor injury” per the following:

“The new legal definition will include things like sprains, strains, mild whiplash, cuts and bruises, anxiety and stress from a crash. It does not include broken bones, brain injuries (concussions) or other more serious impairments,” vowed the Feb 6. news release from his office.

“A medical professional — not ICBC — will determine the nature of an injury and this will determine whether it falls under the definition of a minor injury. An injury initially diagnosed as minor may also be determined by a medical professional to become non-minor over time,” it continued.

“If, after 12 months, a customer continues to have serious impairment from the injury, or has a significant inability to care for themselves, it would no longer be considered minor and would not be subject to the limit for pain-and-suffering payouts.”

Most of that language was collapsed into a single paragraph in the latest news release: “The foundation for the new legal definition for what constitutes a minor injury in B.C. lists abrasions, contusions, lacerations, sprains and strains, pain syndrome, psychological and psychiatric conditions or an injury in a prescribed class of injury, even if chronic. This will be further defined in regulation over the coming months.”

Elsewhere in this legislative work in progress there is a blank-cheque provision: “Despite this or any other Act, the cabinet may make regulations respecting any matter that the cabinet considers is not provided for, or is not sufficiently provided for, in this Act.”

The cabinet also gives itself the power to “make regulations defining words or expressions used but not defined in this Act. (Call it the Humpty Dumpty clause, after the character in Alice Through the Looking Glass: “When I use a word, it means just what I choose it to mean — neither more nor less.”)

Assuming ICBC overlooked anything in its legislative asks, there’s also a open-ended clause allowing the cabinet “to delegate a matter to or confer a discretion on ICBC” as it sees fit.

Eby denied this regulatory vagueness was evidence of the New Democrats making it up as they go along. Rather, he insisted, the government needed leeway to address challenges that could arise later. While claiming these measures will together deliver a $1-billion improvement in ICBC’s bottom line, he also cautioned that effectiveness will depend on “the behaviour of lawyers” who “will try to get around” the provisions.

Surely not minister. Say it isn’t so.

The many matters left to after-the-fact regulation could also be intended to limit critics of the bill, who’ll be reduced to debating generalities while guessing at the specifics to be named later.

But given Eby’s reliance on advice from the scarcely disinterested government auto-insurance company, the inevitable legal challenge will probably include an application for the minister to release his correspondence with ICBC.

Read the full story via The Vancouver Sun here.