Matthew Nathanson: Beware of David Eby's no-fault hustle

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      By Matthew Nathanson

      Listening to Attorney General David Eby talk about the fundamental changes to ICBC, you might think he is looking out for you, the little guy.

      But you would be wrong. Dead wrong.

      The government is making it sound like things will be better for you under this new “no-fault” system if you get into a car accident. But the truth is, things just got way worse.

      You may or may not care that Eby looked you right in the eye and told you the government wasn’t going to bring in “no-fault” and is now doing exactly that.

      “Now” meaning after he wasted bucketloads of your money fighting a losing court battle over his ICBC “reforms” while secretly planning the switch to “no-fault” all along.

      That’s an expensive smoke screen, on your dime.

      But integrity issues aside, you should care about what the “no-fault” system is going to do to you and your family if, God forbid, anything goes wrong.

      More money for you. Better medical care. Faster payouts. Sound too good to be true? That’s because it is.

      What this change really means is no money for pain and suffering if you are injured. Yes, you heard that right: if you are in so much pain you can’t get out of bed, can’t sleep, and are popping painkillers like they are Tic Tacs, you get nothing for that.

      And if that doesn’t seem fair to you, too bad. You are prevented from going to court to challenge it.

      Most people don’t realize that, at its essence, “no-fault” is about preventing you from having your day in court. Does that sound like a system designed to protect you? Or are you starting to get the picture that Eby’s brainchild is a rigged game, with you holding the short straw?

      There are also hard arbitrary caps on compensation without regard to the unique circumstances of your case or how injuries have affected your life.

      Does it matter that your injured back prevents you from picking up your kids or coaching them in hockey? No. Does it matter that you can’t go for a hike on your day off or be part of your softball team’s first-ever shot at the playoffs? No. Does it matter that whatever gives you joy and makes you who you are is no longer possible because of your injuries? No. You are the same as everyone else. All backs are equal, hoop dreams or not.

      And don’t believe the government hype about streets paved with “no-fault” gold. Under this “one size fits all” approach, you will almost always get less compensation, not more.

      Remember, under “no-fault” both parties to an accident get compensation, not just the innocent one, like it is now. That means double the people will be making claims. I’m no mathematician, but that seems like a crucial fact glossed over in Eby’s “no-fault” sales pitch.

      No, it’s all balloons and llamas at the “no-fault” used-car lot, where every vehicle is priced to move, move, move. But watch out, the sticker price never shows the real bottom line.

      What little compensation you do get under the new “no-fault” system is limited to what you were earning at the time of the accident. Even if your career was just about to take off and you were next in line for that big promotion. Even if, because of your injuries, that bright future is now over.

      So not only are you the same as everyone else, you are also perpetually the same as you were at the time of the accident. Frozen in time forever, even if that grossly misrepresents the impact of an accident on your career and your life.

      Where were those little tidbits in the government’s big news conference?

      Eby is like the hustler sitting behind the card table with three cups on it. He’s moving them around faster and faster, promising you quicker, better benefits—if only you can guess which cup has the prize underneath it.

      Except there’s nothing under the cups. Any of them. And he knows it.

      A number of commentators have already written about the political issues surrounding these changes, and their timing. They say the NDP is trying to cling to power by throwing stones at the Liberals. The Liberals are lobbing them right back. I will leave the politics for others to debate.

      My concerns are with the practical consequences of “no-fault” for injured people, not with who is to blame for problems at ICBC or who can get the most votes on the backs of injured people.

      Back to the substantive issue, it is tempting to buy into the government’s false narrative that by eliminating legal costs, “no-fault” leaves more cash for injured parties and lower insurance premiums for the rest of us. Sounds pretty good. Except when you dig beneath the surface.

      Who will decide what fair compensation is in this “no-fault“ paradise? A fair and impartial judge who has listened to all the evidence? Nope.

      A tribunal will tell you. And who runs this tribunal, you ask? ICBC. The same ICBC, run by the government, that wants to pay you as little as possible for your injuries so they can keep costs down and make Eby look good on TV? Yup, that’s the one.

      But don’t worry, the tribunal is going to be “supercharged”, Eby says. What does that even mean? Double the balloons and twice the llamas?

      David Eby, the minister responsible for ICBC, wants to ensure that accident victims aren't represented by lawyers when they face a tribunal.

      If the government really wanted to save you money, they would let you choose your own insurer instead of forcing you to eat cold ICBC gruel. Or, at the very least, let you choose to opt out of the “no-fault” regime, like other provinces do.

      You know, let you make decisions that affect your life as opposed to making them for you.

      But back to the tribunal. Eby would have you believe that the same corporation that has been fighting tooth and nail to grind injured people for years is now the one you should blindly trust to look out for your best interests.

      Sound a bit like the fox guarding the hen house?

      In the criminal-law world, where I practise exclusively (in case you were wondering, “no-fault” does not affect me one bit), it is the equivalent of asking the police who investigated you to decide whether you are guilty or not. That sound fair?

      Aside from the tribunal’s obvious self-interest, what if, in some bizarre twist of fate, it lowballs you and doesn’t provide anything close to fair compensation for your legitimate injuries? Who stands up for you then? Well, you do, with all your legal training and medical expertise. Unless, of course, your brain injury, depression, PTSD, or spinal-cord injury get in the way.

      Is this where the lawyers come in?

      You mean the lawyers who gather independent evidence about your injuries and push back against the nice lady from ICBC who keeps calling every week, cheerfully asking “are you all better yet?” Nope. Eby’s “no-fault” system has cut out the people who can actually stand up for you and help you fight back.

      This is the big lie. It’s certainly true Eby wants to get rid of the lawyers, but not for the reason he says. Eby wants to remove lawyers from the equation so that vulnerable people who have been hurt in an accident don’t have anyone to fight for them. Then ICBC can pay them next to nothing for their injuries and no one is around to stop them.

      But it’s not about the lawyers; it’s about you. The injured person who just wants to be treated fairly. The innocent person who just wants to get their life back after being hurt in an accident—an accident that wasn’t your fault. You’re not after some big windfall; you just want to be put back where you were before the accident. To be made whole. And you deserve a system that does that. A fair system. “No-fault” isn’t it.

      The real truth that Eby hasn’t told you is that he is robbing Peter (that’s you, if you are unlucky enough to get injured) to pay Paul (ICBC and his own government). He’s betting that if he wraps the scheme up in a fancy box that says “lower insurance rates”, you won’t notice.

      Well, not until it’s too late.

      I guess the question boils down to this: are you willing to risk your health and your future to save a couple hundred bucks a year on car insurance? Think carefully before rolling those dice, though, because the stakes couldn’t be higher.

      Wait, I’ve got it. There is a simple solution after all. Don’t get hurt. Even if it’s not your fault. Even if you are T-boned while driving your kids to school and can’t work because of your concussion. Or damaged spinal cord. Or other “minor injury”.

      But don’t worry. The guy whose fault it is—who has 17 speeding tickets on his record and just smashed into you in a school zone—will get the same compensation as you. “No-fault”, remember?

      Still want that shiny “no-fault” present? Or maybe you want to send it back, unopened, and ask the government for “permission” to make decisions that affect your health and that of your family. It’s up to you. But speak now or forever hold your peace.

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      Matthew Nathanson is a criminal lawyer practising in Vancouver. The views expressed in this article are his and not necessarily those of the Georgia Straight or its editorial board.

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