Understanding the constitutional challenge The Trial Lawyers Association of B.C. has filed against ICBC.
April 15, 2019
The Trial Lawyers Association of B.C. is launching a constitutional challenge against the provincial government over new Insurance Corporation of B.C. (ICBC) rules. Members of the Trial Lawyer Association of B.C. are concerned that the new regulations ICBC has implemented as part of their changes will result in an unjust restriction to the access of the courts and unfairly reduce compensation for those injured on the road.
What are the Trial Lawyers Association of B.C. taking ICBC to court over in layman’s terms?
TA constitutional challenge means a law is being challenged in court to determine if it violates or is inconsistent with the Constitution of Canada, including the Canadian Charter of Rights and Freedoms. If the law is found unconstitutional it can be struck down by the court, meaning it no longer applies. Access to justice is a basic human right. The legislative and regulatory changes that the government has made to address ICBC’s mismangement problems violates the rights of British Columbians. The concern is that the scheme that has been set up will unduly restrict access to the courts and reduce compensation for those injured on the road. The regulations now in place make it harder for British Columbians to protect their rights after being injured on the road.
What does ICBC define as a soft tissue injury? What is the controversy being argued about this definition?
ICBC has included most soft tissue injuries in the definition of minor injury. This includes first and second degree strains and sprains along with Whiplash Associated Disorders (or WAD injuries) of first or second degree unless they result in serious impairment.The controversy is whether the definition of minor injury is too broad. It includes pain syndromes, such as chronic pain and psychological or psychiatric conditions like PTSD that can have permanent, serious and long lasting effects on people.Or consider the example of a person involved in a roll over accident who suffers a significant sternum injury as well as whiplash that puts them off work for 3 months, and leaves them with some pain and limitation years after the accident. Under the current legislation that injury would be considered minor and non-pecuniary damages would be capped at $5500.
ICBC says there has been an uncontrolled gap growing between the premiums collected from customers and the cost of the claims paid out each year. They argue that the reason the province has moved things to a tribunal is to deal with rising settlement costs that have been driven by legal bills.What facts support the above statement made by ICBC? What facts work against it?
There has been an increase in the cost and number of expert reports, which is the main issue driving increases in “legal costs”. Basically the cost of medical doctors to give the opinions necessary to prove injured peoples cases has risen over the years. ICBC retains the same experts and pays them the same rates that lawyers acting for injured people do. The Attorney General recently passed regulations to limit the number of experts and reports that parties can present at trial in an effort to reduce these costs. The issue with these regulations is that it will disproportionately affect injured parties as they bear the onus of proving their case. There have been an increasing number of claims each year as the number of accidents has gone up year over year. If ICBC wanted to reduce the amount paid out to match premiums collected they could do so without taking away the right to fair compensation for injured parties by increasing efforts to promote road safety (such as more driver education, traffic enforcement, road design improvements), lowering the crash rates, and reducing the number of accidents, claims and injured people.
ICBC has said that the changes that were put into effect on April 1, 2019, are necessary due to the quickly escalating costs of injury claims and the associated legal expenses. The public insurer says the rising costs of claims is by far the single biggest pressure on ICBC’s finances.Ultimately, this case should expose whether the legislative and regulatory changes taken to address ICBC’s mismanagement problems violate the rights of British Columbians seeking payment for their injuries incurred on the roads.
Contact Craig McTavish today to discuss how an experienced lawyer can help you fight for the care and compensation you deserve.
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