Legal Challenge of Recent ICBC Coverage Changes

The recent April 1, 2019 changes to your ICBC coverage is being challenged in the courts by the Trial Lawyers Association of BC. Keith Fraser, from the Vancouver Sun, explains why the Trial Lawyers are filing a lawsuit in the BC Supreme Court. Read his full article below.

B.C.’s trial lawyers are taking the government to court over major changes that went into effect today to the way ICBC claims will be handled.

The Trial Lawyers Association of B.C., which represents more than 1,500 legal professionals in the province, says that the legislated changes, which include a $5,500 cap on claims for minor injuries involving pain and suffering and the establishment of a civil resolution tribunal to adjudicate certain claims, are unconstitutional and should be set aside.

The NDP government passed the legislation last year after expressing a concern that the province’s auto insurer, which has reported losses of $2.2 billion over the past two years, was in a financial crisis and changes were needed to protect the interests of B.C. drivers and keep premiums down.

But the association, which plans to file its lawsuit in B.C. Supreme Court in Vancouver today, claims that the cap will discriminate against certain drivers making claims and that the tribunal will unduly restrict access to the courts.

Former attorney general and premier Ujjal Dosanjh said in an association press release that he was “deeply concerned” about the impact of the changes.

“Fixing ICBC is a priority, but not at the expense of access to justice and the charter rights of British Columbians,” said Dosanjh, also a former federal cabinet minister and a lawyer himself.

“I felt compelled to speak out as I do not believe this government has clearly understood or described the impacts of this legislation on the citizens of B.C., especially those least able to advocate for themselves after an injury resulting from a road accident.”

Shelley Howard of the Campbell River Brain Injury Society expressed concerns over the impacts of the new legislation and regulations, saying in the association’s release they have the potential to discriminate against people with brain injuries, psychiatric injuries and chronic pain by treating those injuries differently than other injuries.

“Persons with brain injury are the most vulnerable by the very nature of the injury itself and how long it can take to determine the extent of the loss,” said Howard. “Often the individual cannot recognize it in themselves and therefore communicate it to others.”

A draft copy of the notice of civil claim obtained by Postmedia identifies the plaintiffs as the association and an individual referred to as Jane Doe, whose identity is not yet known who suffered a “minor injury” as a result of an accident.

The planned lawsuit says that pain and suffering is an “intensely individualized experience” that depends heavily on the personal circumstances of the claimant.

“The cap is an arbitrary denial of the individuality of “minor injury” victims, that will result in the under-compensation of thousands of British Columbians every year,” says the suit.

The cap scheme also has a “disproportionately adverse effect” upon women, the elderly and persons with pre-existing injuries or other disabilities by linking the definition of “serious impairment” to a “substantial” inability to carry on work or education, it says.

“Women, the elderly and persons with pre-existing injuries or other disabilities, are disproportionately likely to be unable to establish a “serious impairment” due to their lower levels of participation in work or education.”

The effect of the establishment of the tribunal is to create “significant barriers” to access to justice before the superior courts for many claimants who are entitled to be heard by those courts, says the lawsuit.

The suit seeks to have the ICBC changes declared unconstitutional and of no force and effect and an order that the plaintiffs be awarded special costs. The allegations in the lawsuit have not been tested in court.