We have posted several blog articles on the new law passed by the NDP limiting the disbursements (legal expenses) ICBC is required to pay:
- Does ICBC have to pay my disbursements?
- ICBC’s insane profits and ICBC’s 6% disbursement cap
- The harsh reality of the ICBC disbursement limit – NDP provides ICBC with no limitations in defending against injury claims
This move by the NDP was entirely aimed at saving ICBC money, not improving how they operate or the services they provide to British Columbians. If you have ever had any dealings with ICBC, then you have first hand knowledge of the mismanagement and inefficiency in which ICBC has been running for years.. Ironically, this same management has stayed in place at ICBC and they have continued to receive big bonuses. Can you imagine if this happened to a private corporation? There is little doubt that management would be replaced for running the corporation’s finances into the ground.
Instead of fixing management and improving ICBC’s efficiency, the NDP have instead focused their efforts on providing ICBC more power and stripping the rights of injured claimants. Seem wrong? Well, it is.
So, what has actually changed? Well, your rights have been completely stripped from you by the NDP. Injured claimants are targeted, not the mismanagement at ICBC. As of May 1, 2021, ICBC has been changed to a “no fault” model which the NDP have labeled “enhanced care”. With no fault, injured claimants will not receive any compensation for pain and suffering. If you are unable to work because you are injured, you “may” be eligible for wage loss benefits. The decision to provide you with benefits is entirely within the discretion of ICBC’s adjusters. Even if you are approved, these wage loss benefits do not fully compensate you for your lost income. In most situations, you will receive a fraction of what you have lost. You will also likely be ineligible for future income loss unless you are in exceptional and rare circumstances. Even if future wage loss benefits are approved, they will also be a fraction of what you will lose into the future. Again, the power to grant or deny you benefits is within the ICBC adjuster’s discretion. If you don’t like their decision, then you are now on your own to deal with ICBC. The NDP have conveniently set up a system that is incredibly difficult for anyone to navigate. This will undoubtedly discourage most people from challenging ICBC even if they make a clear wrong decision.
The new disbursement limit is another attack on injured claimants. Prior to the new law passed by the NDP, ICBC was responsible for paying for all disbursements as long as they were reasonably incurred. Now, the NDP thinks ICBC should not have to pay for this. Any disbursements that are not paid for by ICBC will be at the injured claimant’s expense. What is most impactful is that this new limit restricts an injured claimant’s ability to prove their injuries and losses which is required by law. Disbursements need to be incurred well above this new limit in order to fully prove an injured claimant’s losses. If there are less medical legal reports because of the cost, then this impacts an injured claimant’s ability to prove their case which will result in a lower settlement or lower trial award.
This issue was recently addressed by a BC Supreme Court judge in Meckik v. Chan 2022 BCSC 182 where this new law and the NDP were criticized:
[9] This case was subject to the limitation on expert evidence imposed in 2020 by an amendment to the Evidence Act, R.S.B.C. 1996, c. 124 [Evidence Act]. Section 12.1 of that Act now limits expert evidence on the issue of “vehicle injury damages” (a defined term) to 1) no more than three experts and 2) only one report from each expert. As well, the Disbursements and Expert Evidence Regulation, B.C. Reg. 210/2020 limits disbursement recovery regarding the three permitted experts to six percent of the total award of damages assessed by the court at trial.
[10] The thinly veiled purpose of this legislation is to improve the finances of ICBC by reducing the quantity of expert evidence in motor vehicle accident liability claims and to thus both reduce litigation costs and produce lower damage awards whether by way of settlement or at trial.
[11] This case is one where the accident has caused severe and disabling psychiatric injury such that the formerly hard-working and socially competent plaintiff is suffering from unrelenting distress, requires multidisciplinary medical care, and will no longer be capable of full-time employment. The legislation limiting expert evidence in this case resulted in:
- two expert medical reports from a consulting psychiatrist and physiatrist respectively but no supporting reports from the plaintiff’s treating professionals such as her family doctor and psychological counsellor and others who have been treating her in the past three years;
- evidence being tendered from an occupational therapist as “factual evidence” as opposed to “opinion evidence”; and,
- clinical and hospital records from various sources being shovelled wholesale into evidence in conjunction with a “documents agreement” which permitted their use to establish the truth of their contents (including the accuracy of diagnoses made and the treatments provided).
[12] While all of this may serve the best financial interests of the government and its Crown corporation auto insurance monopoly, it makes more challenging the already difficult task of the Court in determining the nature and extent of the plaintiff’s injuries and the appropriate medical treatment that might be required in the future.