To: David Eby, B.C. Attorney General.
Re: Bill C-20.
Dear Minister Eby:
You may remember me from law school.
I began my legal career at a large Vancouver firm, working for insurance companies, before moving to a smaller firm. The relationship between an individual and an insurance company is one of extreme power imbalance. I no longer represent insurance companies, but work for people whose lives are genuinely affected by my advocacy.
I followed your involvement with Pivot Legal Society and the BC Civil Liberties Association. I was happy to see a former schoolmate advocating for vulnerable people. I believed your history of advocacy would influence your work as an MLA and you would continue to fight for the most vulnerable people.
I was impressed by the BC NDP’s promise not to introduce a no-fault system for motor vehicle claims. As a lawyer I understand the importance of a full tort system in ensuring injured people are treated fairly. For that reason I am extremely disappointed by your decision to institute a largely no-fault system.
The purpose of an award of general damages is to compensate the pain, suffering and loss of enjoyment of life that inevitably occurs with injury. It is a consolation for the loss of something that cannot be replaced with money.
The Supreme Court of Canada has held that the amount of an award “should not depend alone upon the seriousness of the injury but upon its ability to ameliorate the condition of the victim considering his or her particular situation. It therefore will not follow that … the gravity of the injury alone will be determinative.… In dealing with an award of this nature it will be impossible to develop a ‘tariff.’”
Your cap system deprives injured people of this consolation. It imposes an arbitrary tariff on a broad range of cases, without regard to the individual’s circumstances, and does what the Supreme Court of Canada said could not be done. It is inherently unfair.
I routinely see the effects of injuries. They disrupt plans and goals. They deprive people of happiness and independence. They destroy relationships, careers and even lives. This is particularly true of chronic pain and psychiatric conditions, two very serious conditions you have defined as “minor injuries.”
Even relatively minor symptoms can have a significant impact, especially when they become chronic. This is often gradual, and the full impact of injuries can take years to manifest. The definition of “minor injury” ignores the cumulative effect pain and psychiatric conditions have. Under your cap system, many people will be told by the Insurance Corp. of British Columbia (ICBC) they have only minor injuries and will settle claims long before the true impact of injuries is known. Some will suffer a lifetime of pain and disability with no compensation.
Under your cap system the gatekeeper for the interpretation of “minor injury” will be ICBC. ICBC does not put the interests of injured people first, but is often aggressive and confrontational. It forces people to spend thousands of dollars to prove things it should admit. It denies coverage for medical expenses, forcing people to pay for their own medical care or go without. It hires expert witnesses who are biased advocates, paid to diminish and distort the cause and effect of people’s injuries. It accuses injured people of lying and exaggerating, without any evidence. ICBC belittles and intimidates injured people as a matter of corporate policy.
Clients often come to us because ICBC has refused to pay for their treatment, and my firm routinely finances medical care because ICBC refuses to. We spend many hours trying to get ICBC to pay for medical and disability benefits it is required to pay. We do not charge any fee when we recover these benefits for our clients. What allows us to do this is the fee we receive from the pain and suffering award. When you take that away from injured people, you take away their ability to retain counsel and leave them at ICBC’s mercy.
You have been presented with options to address the effects of ICBC’s mismanagement, without prejudicing the rights of injured people. You have rejected those measures and taken the side of the insurance company, against injured people. Your decision to strip injured people of their rights, and their access to justice, is contrary to everything I believed you stood for.
It is not too late to fix this mistake. I urge you to think about the ordinary British Columbians this will affect. Those with seemingly minor injuries that later become serious. Those who can’t afford their therapy when ICBC refuses to fund it. Those who lack the resources or expertise to stand up for their rights. Those who, not long ago, you stood up for. I am asking you to stand up for those people again.•
Sincerely,
Shadrin M. Brooks
Shadrin M. Brooks is counsel at BTM Lawyers LLP in Port Moody. This is an abridged version of the full letter sent to Attorney General David Eby, available at btmlawyers.com.
