Canada

Court rules that government efforts to limit trials in minor injury claims unconstitutional

Defeat could erase $390 million in savings projected for ICBC as a result of moving minor claims from courts to civil resolution tribunal.

B.C. Attorney-General David Eby.

Attorney-General David Eby insisted that the province’s no-fault auto insurance system is on solid ground after a key tenet of the government’s ICBC reforms was struck down by the courts.

The defeat could erase the $390 million in savings projected for the Insurance Corp. of B.C. as a result of moving minor claims from the courts to a civil resolution tribunal.

B.C. Supreme Court Chief Justice Christopher Hinkson ruled on Tuesday that the government’s move to prevent minor injury claims from being litigated in court, instead diverting them to a civil resolution tribunal, is unconstitutional. His ruling struck down sections of the Civil Resolution Tribunal Act, which means that the tribunal can no longer adjudicate minor injury claims under $50,000 or settle disputes around the definition of minor injury.

Eby said the ruling will not impact the COVID-19-related ICBC rebate heading to drivers this month or the 20 per cent insurance-rate savings drivers are expecting once the province switches to a no-fault insurance model May 1.

The government projected that by dealing with minor injury claims through an administrative tribunal instead of paying lawyers to litigate the claims in court, ICBC would save $390 million. The changes came into effect April 1, 2019, in an effort to reverse the $2 billion in losses at ICBC between the start of 2018 and the end of 2019.

When asked about whether these savings have been lost, Eby told reporters: “While it is a significant amount of money, and there’s significant potential further savings for drivers that would take even more pressure off rates, it is not in our current projections in terms of what ICBC’s finances look like, what rates look like for drivers or what the COVID rebates are.”

Eby said his immediate instinct was to appeal the decision but said his legal team is still deciding that. He expects a decision on an appeal to be made by Monday.

If the Attorney-General’s Office files an appeal, Eby said the government will ask for a stay-of-proceedings so the civil resolution tribunal can resume handling minor injury claims.

The Trial Lawyers Association of B.C., which sued the government over the changes, said the ruling raises serious legal questions about the NDP’s entire no-fault insurance model, since the civil resolution tribunal is a key element of that scheme.

Eby dismissed that, saying, “the question in front of the court was not the legitimacy of the no-fault system. That question has been in front of the courts before and it’s been upheld as constitutional.”

The association, which represents more than 1,500 legal professionals in the province, had argued that the government’s creation of a civil resolution tribunal to adjudicate minor accident claims effectively denies claimants the right to a fair trial.

Melissa Rondpre, one of the lead plaintiffs who challenged the law, argued that the online tribunal robbed her of a fair process that includes an impartial judge and a trial where evidence can be given and witnesses questioned.

The association’s president, Kevin Gourlay, said in a statement that the court decision affirms people’s access to justice.

“This ruling ensures your right to access a court if ICBC makes an incorrect decision affecting your rights,” he said. “It does so by declaring that the government cannot give the power to decide accident claims to its own online tribunal.”

This is the government’s second loss on ICBC reforms. The same judge ruled that the government’s limits on expert witnesses at ICBC-related trials were also unconstitutional because the measures violated the exclusive powers of a court to control its own processes.

Eby said he expected each aspect of the government’s ICBC reforms would be hotly contested by trial lawyers because they have a “massive vested interest in the bloated and inefficient insurance system that we inherited.”

Claimants can still go through the tribunal if they choose, but Hinkson said that should not be their only option. Eby noted lawyers can still be a part of the civil resolution tribunal.

“I have no interest in shutting lawyers out of assisting people at the civil resolution tribunal process,” Eby said. “What I have a concern about is when a legal process becomes so complicated, so expensive with experts charging tens-of-thousands of dollars for reports, it takes years for accident victims to get their awards. It was a broken system and so we had to fix it.”

The Attorney-General argued in the case that courts have been clogged with “high-volume/low value” disputes, citing figures from 2019 that showed 24,546 Motor Vehicle Act claims were filed in court, which was about a third of new civil and family court cases filed that year.

Hinkson noted that a small percentage of those claims — about 200 — actually went to trial.

He also ruled that the Attorney-General’s claim that the tribunal process will be faster and cheaper is speculative since the tribunal has no record of handling the volume of claims anticipated.

The tribunal can still rule on whether a person is entitled to accident benefits and adjudicate motor vehicle claims for damages under $5,000.

kderosa@postmedia.com
Twitter: katiederosayyj

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