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

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      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.

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      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.

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      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.

      Kevin Yee is a personal injury lawyer at Hammerberg Lawyers. He acts for people who have been injured by others and can be reached here. Kevin is reaching out to his readers to take suggestions for future articles. If you have topics that you’d like Reasonable Doubt to cover or if you have a general question for a lawyer, you’re welcome to send him an e-mail.

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