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B.C.'s new accident payout regime strips peoples' rights: Herscu

By Jennifer Pritchett, Associate Editor

British Columbia’s new legislation to limit payouts for pain and suffering for many motor vehicle accident victims will have a devastating impact on those who are injured in that province and in need of treatment to recover, says Toronto settlement loan provider Larry Herscu of Easy Legal Finance.

“The B.C. government, through this legislation, is stripping the rights of individuals and their ability to manage their own health-care recovery,” he tells AdvocateDaily.com.

“The introduction of an injury cap for pain and suffering is one of the most important legislative changes to be introduced in 44 years in B.C. and will have serious implications for citizens who are involved in crashes.

"Many British Columbians have lost their right to have their case adjudicated in the courts.”

Herscu, Easy Legal's president and CEO, points to Bill 20, which passed third reading in the B.C. legislature on May 10.

The legislation will leave a huge gap between what the government thinks is fair and what the actual cost of treatment is for those injured, he says.

Bill 20 is one of two pieces of legislation B.C.'s attorney general introduced relating to the provincially owned Insurance Corporation of British Columbia (ICBC) and the way it handles motor vehicle claims, says a Canadian Bar Association (CBA) position paper.

The bill contains amendments to the Insurance (Vehicle) Amendment Act, while Bill 22 contains amendments to the Civil Resolution Tribunal Act, it says.

It is the policy of the CBA that “the right of an individual to recover general damages from the wrongdoer in motor vehicle cases and to have such right adjudicated in the courts is one of the most vital hallmarks of the Canadian system of justice,” the paper states.

The CBA paper notes the solutions proposed by the government in Bills 20 and 22 contain three major features:

  1. A cap on damages for pain and suffering in what it is calling “minor injury” cases,
  2. A new administrative regime to determine whether a claimant has a “minor injury” within the definition that is being developed, as well as to administer claims under $50,000, and
  3. Improvements to accident benefits.

“Bill 20 provides for a limit on payments for pain and suffering in minor injury cases, to be effective for accidents occurring on or after April 1, 2019, but does not specify the amount. However, the provincial government has announced that the limit will be a $5,500,” says the CBA paper.

The problem is, Herscu says, the government is calling many serious injuries minor, even those that can have permanent consequences, such as psychological or psychiatric conditions.

Another issue, he says, is that "an injured collision victim will be stripped of their ability to recover actual health-care losses from ICBC and recovery is reduced only to an amount that the government establishes by regulation.

“If your actual medical costs exceed this, you are out of luck. The government is removing your right to sue for the difference,” Herscu says.

It’s problematic to see the legislative changes remove the ability of the courts to determine what the appropriate compensation is for pain and suffering based on decades of jurisprudence and general notions of fairness, Herscu adds.

Rather than imposing limitations on the rights to compensation for B.C. citizens, he says the government should implement changes that will:

    1. Preserve the rights of British Columbians,
    2. Reduce the incidence of accidents and injuries,
    3. Improve individuals' rate of recovery following an injury,
    4. Drivers who operate safer vehicles should receive a subsidy to their premium,
    5. Negligent or reckless drivers should be penalized not the average citizen,
    6. Drivers with records of dangerous driving behaviours should pay higher premiums, and
    7. The province should proceed with an independent operational review of ICBC in order to identify areas for business reform.

“The way I see it, B.C. is trying to normalize rates across the province by subsidizing those with poor driving records with those of good drivers,” Herscu says. "Instead, they should substantially increase costs for those with poor drivers records.

“The legislation is about doing what’s best for the provincially owned insurance corporation and not what’s best for B.C. drivers."

While the long-term impact of the changes may not be seen for a while, Herscu expects they will hit low-income families the hardest because they have no financial means to make up the difference of the cost between the treatments covered and those that aren't.

"They will have no ability to pay the costs associated with treatment," he says.

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