Lawyer warns ICBC fix won’t be simple

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“The previous system we had before was known as the tort system and it’s a system which provided and was intended to provide compensation for losses.”

Lawyer warns ICBC fix won't be simple

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Under the previous tort system, people injured in crashes could sue and seek damages through the courts. Wright says the goal of that model was to compensate people for what they had lost, including income, care needs, pain and suffering, and long-term impacts on their lives.

 “The whole point of that system was to make people whole to the degree that money could do that.”

Wright says the tort system was not perfect. Over time, he says court cases became longer, more complex and more expensive, especially as lawyers relied more heavily on expert evidence in injury claims. He says some trials could involve numerous expert reports, adding significant cost and time to the process.

“If you’ve practiced law as long as I have you will have seen a tremendous change in how the court system worked, how trials were run and the kinds of damage awards that people were given in injury cases.”

B.C. moved away from that model in 2021, replacing it with ICBC’s no-fault Enhanced Care system. Under the current system, people injured in crashes receive benefits through ICBC based on provincial regulations, rather than pursuing compensation through lawsuits in most cases.

Wright says that change had an immediate effect on the legal system and on the ability of lawyers to represent crash victims in claims.

“When the no fault legislation came into effect May 1st, 2021, it instantly killed the ability of any lawyer to prosecute a claim for a client who was a victim of an auto accident.”

Wright says his firm was able to wind down most of its remaining ICBC injury files by the end of 2022. But he says the people he worries about most are not lawyers, but those who suffer catastrophic injuries or families who lose a spouse or parent in a crash.

“The people I feel most sorry for as a result of no fault, are those that have suffered catastrophic losses. Those fall into two categories, catastrophic injuries and the loss of a spouse and or father, from families.”

Wright says any effort to overhaul the system could be difficult to implement. He says the former tort system was expensive, while the current Enhanced Care system can leave some people feeling they are not being fully compensated for what they have lost. He says that creates a difficult balance for government, ICBC, lawyers and injured British Columbians.

“I think lots could have been done. I think the sensible way forward would have been to take, representatives of government, representatives of the judiciary and representatives of the lawyer group and just have a frank sit down discussion.”

Wright says he believes a middle-ground approach could have been found before the province moved to no-fault insurance. He says the current debate over Bill M-237 reflects concerns that the province may have gone too far when it changed the system.

“There’s always a sensible middle ground to things. I think the concern of a lot of lawyers and people who have suffered losses is the government of the moment just went way too far in one direction.”

The Ministry of Attorney General says Minister Sharma was unavailable for an interview today due to scheduling conflicts, but provided a statement on the case and the broader review of Enhanced Care.

“We understand that this crash resulted in devastating and life-altering injuries for Ms. Sutton, and ICBC is committed to supporting her with all the benefits she is eligible for as she recovers. ICBC has provided Ms. Sutton with more than $660,000 in benefits since her crash. This includes medical and rehabilitation support and counselling, medical equipment, support with her activities of daily living, modifications to her home, income replacement and permanent impairment compensation. Compensation for permanent impairments is outlined in the current regulations, and those regulations also define catastrophic injuries. A Special Committee of the legislature has been appointed to conduct a five-year review of Enhanced Care and to identify opportunities to strengthen and improve the model. The Province and ICBC are participating in this review and are committed to making any improvements based on the committee’s recommendations.”

Bill M-237 is currently before the Legislature following a second reading debate. A special committee is also reviewing Enhanced Care five years after the model was introduced, with the province saying it will consider improvements based on the committee’s recommendations. For Wright, the challenge is finding a system that avoids the high costs of the old tort model, while still providing enough long-term support for people whose lives are permanently changed by crashes and that’s not easy.