The Trial Lawyers Association of B.C. is set to launch a constitutional challenge against the provincial government over new Insurance Corporation of B.C. (ICBC) rules.
The constitutional challenge is expected to be filed on Monday. The trial lawyers say they are attempting to protect the charter rights of British Columbians injured on the province’s roads.
LISTEN: Trial Lawyers Association of BC says new ICBC rules deny British Columbians access to justice rights
“Access to justice is a basic human right guaranteed to us as Canadians under the Canadian Charter of Rights and Freedoms,” Trial Lawyers Association of B.C. president Ron Nairne said.
“The approach this government has taken to legislative and regulatory changes to address ICBC’s mismanagement problems violates the rights of British Columbians. This should be about protecting the public interest — not about protecting ICBC.”
A 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.
The overhaul at ICBC comes into effect on Monday.
As a result of the change, there will be a limit of $5,500 on pain and suffering payouts for injuries that fall under the minor injury definition and a new independent dispute resolution process to help settle injury claims.
The changes are expected to save ICBC more than $1 billion — a welcome sign for a corporation that is forecast to lose more than that amount this year.
At the core of the legal changes is the expansion of the Civil Resolution Tribunal (CRT). The CRT will be used to resolve motor vehicle accident injury claim disputes valued at $50,000 or less.
“Improving access to justice is the heart of our work and what motivates us every day,” CRT chair Shannon Salter said.
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“We are looking forward to taking on this expanded role and helping British Columbians resolve these disputes without the time, stress and expense of going to court.”
It will be up to the tribunal to determine whether an injury is “minor,” whether a person is entitled to accident benefits and who is responsible for a crash. Where parties involved in a crash can’t agree, the CRT can make binding decisions that are enforceable as court orders.
WATCH: Trial Lawyers Association of B.C. set to take government to court over ICBC changes
The reason the province has moved things to a tribunal is to deal with rising settlement costs that have been driven by legal bills. 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.
WATCH: (Aired March 29) ICBC changes kick in April 1
Members of the Trial Lawyer Association of B.C. are concerned that the regulations emerging from the ICBC changes will “unduly restrict access to the courts” and unfairly reduce compensation for those injured on the road.
The trial lawyers also sought out the opinion of former B.C. attorney general and premier Ujjal Dosanjh.
“I am deeply concerned with the impacts on my fellow British Columbians of the impending legislation introduced by our current government. Fixing ICBC is a priority, but not at the expense of access to justice and the charter rights of British Columbians,” Dosanjh said.
“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.”
Two of Dosanjh’s sons work at the Dosanjh Law Group and advertise work on both motor vehicle accidents and soft tissue injuries. His son Aseem previously served as president of the Trial Lawyers Association of B.C.
Lawyers have also raised concerns over the province’s definition of minor injuries. ICBC has included concussions and some other psychiatric injuries where the patient recovers after three months as part of the definition.
“The new injury cap legislation and regulations (have) the potential to discriminate against British Columbians with brain injuries, psychiatric injury and chronic pain by treating their harms and losses differently than other injuries and results in a complicated and almost impossible reverse onus of establishing their injuries have caused ‘incapacity’ or ‘serious impairment,’” said Shelley Howard, executive director of the Campbell River Head Injury Support Society.
Monday’s changes also affect limits on disability benefits, funeral expenses and death benefits.
People can also receive increased medical and rehabilitation benefits starting April 1, even if their injuries were sustained before that date, and they can recover costs for necessary medication.
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ICBC has introduced a new benefit of $1,000 for necessary medical supplies and services, which were previously not covered, such as naturopathic treatments, compression stockings or therapy equipment.
The other new benefits include $740 a week to supplement lost income for customers injured and unable to work, $280 a week for support around the house, such as cooking, cleaning and grocery shopping, and $7,500 to help with funeral costs.
The public insurer will also pay more for treatments and cover more types of treatments for both new and existing claims, including acupuncture, chiropractic care, clinical counselling, psychology, kinesiology, registered massage therapy, occupational therapy and physiotherapy.
The improved benefits can be covered because of the expected increase in both settlements and legal fees.