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B.C. personal injury law firms threaten to blackball occupational therapists over ICBC consultation

Signage for ICBC (Insurance Corporation of British Columbia) is shown in Victoria, B.C., on February 6, 2018. The British Columbia government is moving to curtail lawyers and legal costs in the public auto insurance system by severely limiting injured people's ability to sue at-fault drivers or the auto insurer after a crash. THE CANADIAN PRESS/Chad Hipolito.
Signage for ICBC (Insurance Corporation of British Columbia) is shown in Victoria, B.C., on February 6, 2018. The British Columbia government is moving to curtail lawyers and legal costs in the public auto insurance system by severely limiting injured people's ability to sue at-fault drivers or the auto insurer after a crash. THE CANADIAN PRESS/Chad Hipolito.

An email copied to every major personal injury plaintiff firm in the province is calling for lawyers to blackball occupational therapists who work with ICBC over ongoing changes at the public insurer.

The email, read out in the legislature by Attorney General David Eby on Monday, states some law firms are taking the position that any Occupational Therapist (OT) who has signed a non-disclosure agreement with ICBC has indicated a preference to serve the interests of the public insurer and are no longer suitable to work with their clients.

Occupational therapists rely heavily on work provided by personal injury lawyers in crash-related cases. Some in the industry have been asked to participate in a consultation process with government over the proposed changes.

Brain injury groups concerned about ICBC changes
Brain injury groups concerned about ICBC changes

The email from an undisclosed firm says it believes OTs should not be silenced, but will make it a term of the firm’s retainer that failing to disclose non-disclosure agreements will be grounds for the OT or OT’s firm to refund to all money paid, and to forfeit any fees for work done but not yet billed.

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“We will make repeated FOI searches of ICBC to verify our list,” the email reads. “We will share this list with other firms and expect they will share theirs with us.”

The email comes amid a debate over the future of car insurance in the province. The B.C. government is proposing a switch to a no-fault system, which will limit the right of someone to sue for a settlement in a car crash.

Read more: B.C. government requiring ICBC to notify those injured in a crash of benefits under new system

The changes are expected to severely limit the role of lawyers, and increase benefits for ICBC policyholders.

The B.C. branch of the Canadian Association of Occupational Therapists (CAOT-BC) has responded to a separate email from Jon Harbut on behalf of Rice Harbut Elliott LLP and believes the lawyers’ actions are a direct response to being part of a consultation on the benefits package.

Read more: B.C. government axing lawyer, legal costs to create no-fault style insurance at ICBC

John Rice, the head of the Trial Lawyers Association of B.C. (TLABC), is a partner with Rice Harbut Elliott LLP.

The CAOT-BC believes the actions taken by these law practices are potentially restricting valuable consultation with ICBC and “dampening the debate” integral to the consultation process.

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The organization also describes the emails as “threats to their livelihoods,” which restrict their ability to provide their expertise wherever they choose.

“We sought legal advice on how to address this conduct that we believe to be inappropriate and will be responding according to that legal advice,” the response from the CAOT-BC reads.

“We want our members to know that we are working to maintain the ability for occupational therapists to provide their valuable feedback in the consultation process ICBC is inviting us, and other health professions, to comment on.”

Study suggests ICBC no fault switch will lead to job losses
Study suggests ICBC no fault switch will lead to job losses

Attorney General David Eby spoke to the letters on Monday in the Legislature when asked a question from BC Liberal MLA Michael Lee about some OTs being left out of ICBC consultation.

“Now, if the member wonders what pressure looks like, if the member wonders what a blacklist looks like, if the member wonders what intimidation looks like in relation to occupational therapists, I think he has his answer,” Eby said, in reference to the letter.

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“The occupational therapists who are working with government in good faith to bring their expertise, to draft regulations are being threatened with a blacklist distributed across the province, to all plaintiff-side personal injury firms.”

The Trial Lawyers Association of BC says in an email that it has not issued any communications to the Canadian Association of Occupational Therapists. It goes on to say ICBC and the government are using NDAs as a political tactic to keep stakeholders silent and to create policy measures for no-fault “in secret, with a hand-picked group of stakeholders that they have not yet shared the identities of.”

“Individual members of TLABC hold a range of opinions on legal matters and can be contacted directly if clarity is needed about their stance on no-fault insurance or other issues,” the emailed statement says.

“TLABC has very serious concerns about the government of B.C. and ICBC forcing occupational therapists, health-care professionals, disability advocates, and other stakeholders to sign non-disclosure agreements before accessing information about what no-fault insurance will look like in B.C., and how it will harm injured people.”