By Ian Burns for The Lawyer's Daily
British Columbia’s decision to classify psychiatric issues and mild concussions as minor under new automobile insurance regulations is being called troubling by members of the B.C. bar, adding that recent changes at the provincially owned insurance provider are reducing individuals’ chances to have their issues properly addressed.
The new regulations are part of the government’s plan to reduce costs at the Insurance Corporation of British Columbia (ICBC), which is facing significant losses. As part of the changes, pain and suffering claims resulting from minor injuries will be capped at $5,500.
In a statement, the office of provincial Attorney General David Eby said the government understands some people may be upset by the choice to classify these claims as minor injuries, but one of the government’s key goals is “proportionality in both process and damages to the nature of any particular injury.”
“These product changes are intended to help return ICBC to financial stability, freeing up the money needed to improve the benefits that care for injured people,” the statement said. “This is a complex undertaking and we had to make tough decisions, but a dispute over a concussion that doesn’t last for three months should not be in the B.C. Supreme Court.”
Eby’s office also said B.C.’s definition of psychological conditions is meant to capture mental health conditions that are treatable in a relatively short period of time and “don’t have any prolonged impacts on someone’s ability to work, go to school or perform activities of daily living.”
“We understand that treating mental health conditions can often be more complex than physical health conditions,” Eby’s office said. “Diagnosis and the supporting treatment plan will remain in the hands of medical experts, not ICBC.”
But the changes are not sitting well with some in the legal profession. John Rice, secretary/treasurer of the Trial Lawyers Association of British Columbia (TLABC) and co-chair of the organization’s ICBC committee, said the regulations were “surprising and deeply troubling,” adding they look like a “Christmas list” of ICBC asks and the minor injury threshold is now the most onerous in the country.
“We presented the B.C. government with a number of submissions which showed they could save ICBC somewhere between $500 (million) and $800 million a year and not restrict the legal rights of citizens, but it would involve some very significant changes to ICBC’s management practices and how we conduct litigation,” he said. “But it looks like ICBC and the insurance lobby won the day with this government, because they went for what’s perceived to be an easier fix.”
Rice said, if one takes the time to go through the regulations, “it is not a minor injury cap, it’s an almost every injury cap.”
“What’s left to be excluded? Fractures and neurological injury, which on the face of it we accept aren’t minor,” he said. “But to include brain injuries, psychological and psychiatric issues and soft tissue injuries as being minor, and then visiting the burden of proof on the victim to have to prove their injuries aren’t minor, is deeply unfair.”
Kenneth Armstrong, vice-president of the Canadian Bar Association, B.C. Branch (CBABC) who has practised motor vehicle accident litigation since 1997, said the bar association is strongly opposed to capping injury claims.
“We also think some of the definitions in the legislation are such that people who are off work for significant periods of time or unable to take care of themselves will be labelled as suffering from minor injuries, which is misleading in relation to what these people are actually suffering,” he said.
Armstrong said taking away a person’s right to recovery takes away a fundamental principle in the justice system.
“You have a right to adjudicate your injuries and be compensated for your injuries. That’s the principle of full recovery which is both fair and prudent to people,” he said. “We think that imposing caps on the amount of non-pecuniary damages isn’t going to solve any problems.”
In addition to the minor injury caps, the government has also introduced legislation to allow the provincial Civil Resolution Tribunal (CRT) to have jurisdiction over motor vehicle accident disputes up to $50,000, and grants the tribunal, which was set up to address minor civil disputes, the power to determine whether a person injured in a motor vehicle accident has suffered a minor injury.
Rice said he was concerned that tribunal members are not judges and that it can deal with some cases online, where there is no hearing and the person who is making the decision never sees or speaks to the parties.
“What is most concerning about the framework is, by virtue of the new regulations and legislation, the scope of judicial review [of the CRT] is extraordinarily handcuffed,” he said. “With the one exception of assessing liability, the government has said a decision of the CRT must have clear and overriding error for judicial review, which is the hardest test for a court to be able to discharge.”
Although it did not address the concerns raised by TLABC and CBABC, Eby’s office noted caps would be lifted if incapacity lasts beyond four months.
“We understand that concussions can be life-changing events, and this type of injury is emotional for affected people and their families,” the government said. “Remember, the definition of a minor injury only applies to a customer’s compensation for pain and suffering — one small element of their total claim. People suffering psychological harm from a crash will have access to the significantly improved benefits we’ve put in place to improve care for the injured.”
Armstrong said more can be done with regards to road safety, including ramping up enforcement of distracted driving, yellow light cameras and photo radar, which would have an effect on ICBC’s bottom line. He added work could also be done with regard to doctors’ reports.
“The number of reports and the cost of these reports need to be reviewed and potentially improved,” he said. “So that’s another way we can bring down our legal costs without actually taking away the rights of innocent victims of motor vehicle injuries.”
And Rice said he would not be surprised if there was a challenge to the legislation in the coming year, to determine whether the delegation of powers to determine tort law to the CRT is constitutional.
“There is obviously going to be judicial review and we are going to have to see what the judiciary is going to think of these decisions from the CRT,” he said. “It would be surprising to me if the Supreme Court [of Canada] would conclude that it is not clear and overriding error where an administrative tribunal favours the views of one party over another on a contested matter where there’s no hearing.”
The new minor injury regulations and enhanced powers for the CRT are scheduled to come into effect on April 1, 2019.