Reasonable Doubt: Surveying the new ICBC landscape

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      April 1, 2019, is almost here. It’s an important date. Starting on April 1, anyone hurt in a car accident in B.C. will have drastically different rights and legal options.

      Perhaps you’ve caught some of the headlines or come across the political talking points about the new laws. The attorney general, David Eby, has justified the laws by pointing at ICBC’s finances. ICBC has, in turn, defended its business practices. And in support of accident victims, groups of health professionals and lawyers have voiced their objections.

      The new laws have passed, so it’s a bit moot to dwell on the why. Let’s focus on the how: how will you be affected? This is what you need to know about the major changes coming in.

      The Cap

      The so-called cap has caught the most attention. For accidents starting on April 1, there will be a cap on damages for intangible losses such as pain and suffering or the loss of enjoyment of life. These are called nonpecuniary damages. This cap applies if your injuries fall within the new laws’ definition of “minor”. The cap is $5,500 (with future adjustments for inflation).

      This is completely new. Up until now, injuries were not categorized as “minor” in law or in medicine. The label didn’t exist. Instead, the court determined nonpecuniary damages by looking at the circumstances, such as the severity of the injury and its impact on functioning. The court would then rely on similar cases from the past to decide what was fair.

      Now, it’s expected that many new cases will get swept into the category of “minor” with the corresponding cap on nonpecuniary damages. For more information, see my article on the laws’ definition of a “minor” injury.

      Importantly, the cap applies to nonpecuniary damages only. Other damages, such as for lost income, may be claimed; those damages aren’t capped. Also, the cap won’t apply if a person’s injuries are successfully argued as not “minor”.

      The Civil Resolution Tribunal (CRT)

      The CRT will be the hub for all of the new changes. I wrote about this tribunal when it was launched a few years ago and touted as the world’s first fully online court. In its short life, it has been hearing strata disputes and disputes for less than $5,000.

      Starting on April 1, the CRT will be the default forum for many new ICBC claims. That’s because the CRT will hear disputes of “minor”-injury designations. After all, many new cases after April 1 are expected to fall into that category. The CRT will also decide on a person’s accident benefits—these benefits are written in by legislation for anyone injured in an accident, regardless of fault.

      Accident Benefits

      There are changes to your accident benefits on April 1 too. These are often called Part 7 benefits, or no-fault benefits. These benefits are provided for in legislation to anyone hurt on our roads—even if they caused the accident. The benefits help in different ways, such as covering some of the lost income during a total disability period. Most often, they help offset costs for certain medical treatments.

      The limit of accident benefits goes up from $150,000 to $300,000. However, few are expected to benefit from this increase. According to Eby during legislative debate, only 40 people actually reach the $150,000 limit in a year.

      A more significant impact of the changes is the actual amount per session that ICBC will fund for certain treatments. This increase means that the remaining balance that the patient must cover (often called “user fees”) would go down. That said, it’s still up to the treater to decide how much to charge overall.

      Capping claims for medical expenses

      Increased accident benefits is good news. But here’s the downside: you can not recover your user fees. Before, if you were not at fault for the accident, you could recover out-of-pocket expenses from ICBC. The new laws remove this remedy for victims of accidents from April 1 on. This is a startling change that isn’t getting much attention.

      Often, people’s cases involve compensation for the treatment needed in the future. These damages will no longer be based on the actual treatment costs projected. They will be compensated at the limited amounts that ICBC pays per session as Part 7 benefits.

      Here’s how this can play out: ICBC can approve accident benefits for treatment like they did before April 1. And on April 1, their funding goes up. For example, instead of about $23 per session, ICBC will now offset massage therapy costs by $80. That’s a sizable increase if the massage therapist charges $100 per session. However, there would still be user fees. Those user fees will no longer be recoverable—even if the person isn’t at fault for the accident. On top of that, if the evidence shows that they need more massage therapy in the future, only $80 will be compensated for each additional session needed. Again, the patient must cover the difference.

      Looking Ahead

      These are all drastic changes. Victims of future car accidents will soon experience these changes firsthand. They will have more barriers to legal remedies and more risk with their claims.

      And how will the CRT cope? There are thousands of cases expected to be diverted to it. Will people feel they have been treated fairly and effectively by the CRT?

      It will take time for all the dust to settle. Only then will we have a clear picture of the impact from these changes.

      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 trial lawyer at Personal Legal Services. He acts for people who have been injured or wronged. 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.