B.C. trial lawyers are continuing to sound the alarm over ICBC’s move to a no-fault style insurance system, with one lawyer saying the change could be especially harmful to cyclists.
Joel Zanatta, a Vancouver personal injury lawyer who cycles to and from work every day, says the new system would prevent crash victims from seeking appropriate compensation beyond medical coverage, with income loss protection, in particular, getting capped.
“Cyclists are often much more seriously injured as a consequence of negligent motorists,” he said Sunday.
“Under the old system … you’re entitled to be put in the same position before the accident occurred,” he explained. “Under this new no-fault system, you get what ICBC tells you you’re entitled to.”
According to Zanatta, income replacement payouts could be capped well below what claimants may need while they miss work during recovery.
“If you have expenses — and after an accident you’re going to have a lot of expenses — that exceed what they’re willing to pay in income loss, you’re going to be in a lot of trouble,” he said. “It is extremely risky to ride a bike in a no-fault environment.”
A spokesperson for the Ministry of Attorney General said Sunday that Zanatta’s numbers are not quite correct. In fact, the ministry points out that maximum payouts would actually increase by 60 per cent under the new system, from $740 per week to $1,200 per week.
The ministry says other benefits under the new system revealed Thursday, including an $800 per week family business benefit and a $20,000 per year payout for each year of school missed, don’t exist under the current model.
Overall, ICBC customers will have up to $7.5 million in medical and rehabilitation benefits compared to $300,000 under the current system.
The automatic benefits for ICBC customers involved in a crash and working with their doctor will include treatments like massage therapy, chiropractic care and physiotherapy. Customers will also have access to prescriptions, dental care, counselling and personal-care services.
“You shouldn’t need a lawyer to access the benefits you’ve paid for,” Attorney General David Eby said Thursday.
“By removing expensive lawyers and legal fees from the system, we are making ICBC work for British Columbians again with more affordable insurance rates and much better coverage.”
The changes would bring the insurance system in B.C. close to those in Manitoba and Saskatchewan, which are both fully no-fault systems.
The changes, which will come into place on May 1, 2021, if legislation is passed, are expected to save an average of $400 per driver.
Zanatta says the new system will also incentivize bad driving by lowering insurance rates while making cyclists think twice about hitting the road on two wheels, which goes against what the province and municipalities have been promoting in their transportation plans.
“I see all these people out on the roads,” he said. “They’re following what the government had asked people to do — get away from cars and get on their bikes — and now they’re going to be having this massive risk squarely put on their shoulders that if they’re hurt, there’s no rights.”
The changes will limit the types of collisions where the ICBC customer can go to court.
An injured driver will be able to sue if they are involved in a crash with someone charged with a criminal offence and if either a manufacturer or repair facility is found to have done faulty work.
The ministry added Sunday that premiums will also increase for drivers who cause crashes.
Customers will be able to use the beefed-up Civil Resolution Tribunal and can challenge decisions if there are concerns about the outcome.
The Trial Lawyers Association of B.C. (TLABC) and other legal groups have criticized the change, saying it goes against the NDP’s promise in 2017 to never move towards no-fault insurance.
Shawn Mitchell, CEO of the TLABC, says it’s too early to say whether a legal challenge will be filed against the changes. He says the group will wait until the legislation is tabled to decide whether to go that route.
Mitchell couldn’t speak to how successful such a challenge could be but pointed to the province’s recent defeat in court over restricting expert reports as proof that the government could be in a weak position.
The move to no-fault style insurance also comes just nine months after another massive overhaul of ICBC rules, which trial lawyers did challenge in court in April.
“It’s hard to imagine how the government can expect British Columbians to trust them when the big changes they did less than a year ago are already being thrown out and another big change is being put on the table for people to then swallow and accept,” he said. “That’s asking a lot.”
Zanatta is calling on lawyers and cyclists alike to fight back against the changes, calling them “diabolical.”
“I know people have concerns about lawyers — “oh, they’re greedy and whatnot” — but to believe an insurance company’s intentions over that of the lawyers in British Columbia is absolute folly,” he said.
—With files from Richard Zussman