Orders of the Day

Hon. M. Farnworth: In this chamber, I call the committee on Bill 24, Miscellaneous Statutes Amendment Act (No. 2), 2018, and in Committee A, the estimates of the Ministry of Citizens’ Services.

I’m just reminded that we have about half an hour left on Social Development. So that is also called first, followed by Citizens’ Services.

Committee of the Whole House

BILL 24 — MISCELLANEOUS STATUTES
AMENDMENT ACT (No. 2), 2018

The House in Committee of the Whole (Section B) on Bill 24; L. Reid in the chair.

The committee met at 1:35 p.m.

On section 1.

S. Gibson: A few queries on the Advanced Education file. Part 1, section 1 eliminates the requirement of the Minister of Finance to sign off on colleges and institutes for the disposal of land and leaves the decision solely with the minister. A few queries on this, if I may. What is the purpose of this section? What inspired this to be brought forward? That would be my first question, hon. Chair.

Hon. M. Mark: Thank you for the question from the member opposite. This legislation will remove the statutory requirement for approval of these acquisitions and dispositions from the Minister of Finance. It will reduce unnecessary duplication of work, reduce red tape and remove complications for government’s administrative processes.

If this amendment does not proceed, government’s processes for approving land transactions for colleges and institutes will continue to be lengthy and administratively burdensome. So it’s really about moving forward on the principles of administrative fairness and getting those decisions to the people that want decisions from my ministry.

M. Lee: Just as a follow-on, is that amendment similar to other government assets in terms of not requiring Minister of Finance approval?

Hon. M. Mark: The Ministry of Advanced Education, Skills and Training, under my authority, is an anomaly. Under the SUCH sector — schools, universities, colleges and hospitals — education isn’t required to have this secondary step. It actually just slows down decision-making. But this amendment will bring things into line with the decision-making authority for education and hospitals.

A. Weaver: To the minister: would you classify this as reducing red tape?

Hon. M. Mark: Yes. Thank you for the question.

S. Gibson: I guess the question is: what policy outcomes…? What is the logical conclusion of changing this, which is a relatively significant change? Should the Minister of Finance have some purview at some point over these decisions?

Hon. M. Mark: There are levels of due process in these chambers, and when we make decisions in government, the Minister of Finance can always ask questions. But there are lots of steps before decisions are made to transfer off any assets or make any leases to land, etc. This is really about moving things along quicker, faster, more efficiently, more effectively. But it doesn’t mean that the quality of the decision-making is going to be compromised by making these amendments.

S. Gibson: Will there be any written criteria for disposal of lands? Will there be something that will be reviewed and disseminated that people can see that shows criteria, in particular?

Hon. M. Mark: There are already very robust criteria that are required. It’s identified in the Capital Asset Reference Guide.

[1:40 p.m.]

S. Gibson: Will the criteria change at all, in any way, as a result of this decision? Secondly, will the minister have any kind of communication with the Minister of Finance or that ministry in a part of this process? So a two-part question.

Hon. M. Mark: Just for the member’s information, I already have the authority, as Minister for Advanced Education, Skills and Training, to only go through my ministry to dispose of assets for universities. What this amendment is doing is bringing into line the same process for colleges and institutes. So there will be no change in the requirement.

What we’re doing is making it more efficient for my ministry to make decisions. We are always in contact with the Minister of Finance when we’re going forward in making decisions, but we don’t need the Minister of Finance’s authority to make those decisions.

S. Gibson: A final question. Given the different governance models of institutes, colleges and universities, is the criteria or the discretion of the minister applied in any kind of a different way?

Hon. M. Mark: The answer is no.

S. Gibson: Thank you, hon. Chair, and thank you for allowing me to ask these questions today.

Section 1 approved.

On section 2.

M. Lee: Just on this proposed amendment to the Infants Act…. As I mentioned in my second reading comments, I’d just like to ask the Attorney General as to…. When wards covered by this provision reach the age of 19 years old, what is the process under which they might enter into agreements with the Public Guardian and Trustee? Must they sign or accede in any way to entering into that agreement? Is that a mandatory requirement?

Hon. D. Eby: Thank you to the member for the question.

These sections of this miscellaneous statutes bill that we’re in committee stage on relate to creating a permission for the Public Guardian and Trustee to enter into an agreement with a youth, where they have custody of the youth’s assets, after they turn 19 — a voluntary agreement that the Public Guardian and Trustee continues to manage those assets.

It might sound strange to some members, the idea that youth in care would have significant assets, but in fact, there are a significant number of youth who potentially have assets from a number of different sources, whether they be estate assets or, also, the proceeds of litigation. They have been injured by somebody. That person has been sued and has paid out a litigation award to the youth. These amounts of money can be very significant, can be in the millions of dollars.

When a youth turns 19, currently the Public Guardian and Trustee has to end that financial management relationship. What this does is this says: “If you want, 19-year-old, you can enter into an agreement with the Public Guardian and Trustee now, and the Public Guardian and Trustee will manage your funds for you.” You can also go off, and you can — this is totally voluntary — hire a private investment management firm, or you could go to a bank. It’s up to you. You’re of age now. But if you wish, the Public Guardian and Trustee is available to assist you with managing your funds.

In terms of the mechanics, there’d be a specific form, an agreement that the young adults would have to sign with the Public Guardian and Trustee in order to enter into this agreement. It would be entirely voluntary, and the young adult could terminate that at any point. It’s not binding forever. As long as they felt it was appropriate, they could keep that agreement in place.

Section 2 approved.

On section 3.

[1:45 p.m.]

M. Lee: In respect of this provision of the Liquor Control and Licensing Act, there has been…. I’m just curious about the background of this change. Can the Attorney General just comment on the incidents in the past that have triggered this proposal and what the background or the rationale is for this change?

Hon. D. Eby: This section of the miscellaneous statutes bill relates to conditions around when minors may be in an establishment that serves liquor. Currently those rules need to be set by regulation. Regulation is obviously a formal process that engages cabinet process and order-in-council and so on. It’s a bit restrictive in terms of conditions being able to be imposed by the general manager.

This revision allows the general manager to impose terms and conditions on a specific licensee to customize the conditions around the access of minors to the specific situation of the licensee, as opposed to having a more general rule coming out of cabinet through a regulation. We think there are great benefits that come from this relatively minor change, giving some discretion to the general manager to impose through a term and condition on a licence, as opposed to having it set out in regulation.

M. Lee: Thank you for that explanation. Is there some range in terms of those terms and conditions as to the authority — the range on authority in terms of what the general manager can impose? And is there any concern that there may be inconsistencies in terms of those sorts of terms and conditions that are being imposed by the general manager?

Hon. D. Eby: Generally speaking, we expect the general manager to exercise a great deal of discretion in these types of terms and conditions. I mistakenly said “access for minors.” I should have said “employment of minors.” This section relates to the employment, not access, of minors to a licensed area.

There are a number of areas where the general manager has discretion on terms of licences. So this brings terms related to the employment of minors in a licensed establishment into consistency with those other areas of discretion that the general manager already has around setting terms and conditions on a licence.

Sections 3 to 5 inclusive approved.

On section 6.

M. Lee: On this particular section, I would like to ask the Attorney General whether this particular amendment creates any new powers for the general manager which are not already authorized through other provisions under the act.

Hon. D. Eby: This clarifies that a licence can be suspended for failure to report information that’s required by the act or by the regulations or by terms and conditions on the licence. It doesn’t create any new powers. What it does is it’s intended to communicate to people who are reading the act and trying to understand what their obligations are that they could have to report information under any of these specific sections, under the act, under the regulations or under the terms or conditions. So there’s no new power here. It’s just a clarification for people so that they understand what their obligations are.

Sections 6 and 7 approved.

On section 8.

[1:50 p.m.]

M. Lee: In terms of this particular section and the threshold for the examination to determine that the person has a reasonable belief that the identification with respect to the conclusion that the person is not a minor…. I just wanted to go to that due diligence aspect. What is that threshold for examination to ensure that that’s sufficient to give that person the reason to believe that that authentication is sufficient?

Hon. D. Eby: This section is a response to the fact that the current act says that no matter what the circumstances are, you commit an offence if you allow a minor into your liquor store or other age-controlled, licensed establishment. What we wanted to do was say….

It is possible that someone could present identification that would reasonably cause someone to believe that they were of age. We didn’t want to punish a store operator or a bar operator for somebody producing a convincing forgery. I knew some kids in high school that had some very convincing identification from older siblings — friends of mine.

The idea here is that instead of an absolute liability offence, if someone manages to get their way into the bar with a convincing fake, we wouldn’t be punishing someone who allowed them in, if they took reasonable steps.

The member has asked, reasonably: “Well, what’s reasonable?” There are a couple of cases on this that establish the standard. Haney Hospitality is one which made a determination around this. There was also a case in the B.C. Supreme Court called Miller’s Landing v. British Columbia.

In the Miller’s Landing case, at paragraph 74, the court specifically talks about the adjudicator’s interpretation of the term “authentic” and the reasonableness of that.

The court has said that…. The member knows, as someone who has practised law, that there’s a lot of reasonableness in the law in terms of tests. But the court says that the adjudicator’s obligation…. She was imposing a requirement that the licensee take reasonable steps to determine that the identification was genuine, in the sense that it had been validly issued, that it was genuine in the sense that it belonged to the person that was offering it to the licensee.

The standard of reasonableness was also examined more broadly as a sort of legal test in paragraph 84 of that decision, so I recommend it to the member if he’s curious about how the courts have interpreted reasonableness around examining identification.

Section 8 approved.

On section 9.

M. Lee: In this particular section, I just wanted to ask the Attorney General whether there are any particular implications to be considered beyond what’s on its face, in terms of expanding the definition of “authorized vendor.” Are there any unintended consequences in doing so?

Hon. D. Eby: The answer is no. This simply corrects an error in the drafting of the original act, adding a section to the definition of authorized vendor to include a person to whom a special event permit is issued under the Liquor Control and Licensing Act. It was an oversight, and it doesn’t add any additional powers, authorities or responsibilities beyond what already existed in the act.

Section 9 approved.

On section 10.

M. Lee: In terms of the update on the Property Law Act, I appreciate that that is what this is. In terms of the use of the terms “building, structure, improvement or work,” what standard would be applied to determine whether something falls within those categories?

[1:55 p.m.]

Hon. D. Eby: This section deals with the unusual situation where someone might own land that they don’t have access to without having to go across somebody else’s land, and they can’t get permission of the person that owns the land to allow them to go through to do repair work — in this particular part of the amendment, sub 34(1), where they might have a “building, structure, improvement or work.”

The old section of the act said you had to have a “dwelling house” on the parcel of land in order to get an order from the court that allowed you to cross someone else’s property to get there.

This is a more expansive definition — building, structure, improvement or work. It’s intended as such, that people should be able to access their land, and they should be able get through if they have something that they’re working on — their building, structure or improvement. It’s meant to be a broad definition.

In terms of the member’s question, it’s meant to be written more broadly than the current section, which is dwelling house. The courts will interpret it, but it’s meant to be interpreted broadly.

M. Lee: I’d like to ask whether this has been a particular issue that has been seen, up to now, in terms of how this particular provision has been interpreted for property owners. Has it been a challenge?

Hon. D. Eby: Apparently, this came to the attention of the ministry because someone owned a commercial building on a property that was enclosed by land owned by others. They couldn’t reasonably get permission from the owners to access that commercial building because the definition said: “the owner of a dwelling house on one parcel of land.” That’s why it’s been expanded to now say: “The owner of a building, structure, improvement or work.” It was the advice of legal counsel that that was really the intent of the provision. It makes sense, certainly, to have a provision to allow someone to access their land when necessary.

I can advise the member that to our knowledge, it’s a very rare thing. But it may be that we don’t hear about it a lot because people use this section when someone refuses them permission to cross over their land to get to their dwelling house, to use the old term. They would provide them with this section of law and say: “If you don’t provide me with access, then I’ll go to court and get an order.” Then they allow access, and the government would never know.

It’s rare to have somebody, though, go to court because they can’t find the owner of the property or they can’t get permission. We don’t see a lot of that.

Sections 10 to 13 inclusive approved.

On section 14.

S. Bond: I understand that this section relates to the elimination of a particular board. I understand it’s because of redundancy, but could the minister confirm that?

[2:00 p.m.]

While she does that, could she also let me know whether or not the board has been used throughout the course of its existence?

Hon. C. James: Thank you to the member, because I think it’s important to just set some context for these pieces. The challenge of a misc bill, a miscellaneous bill, is that you don’t get a chance to do second reading and give the overview.

The section of these amendments to the Business Corporations Act, as the member has said, eliminates the Auditor Certification Board. It’s been inactive for more than ten years and is no longer needed because in 2015, the accounting professionals came together in one single designation. When they came together in that single designation, the need for a separate certification process — so a separate board to do that process — was no longer needed.

That used to be done through the Auditor Certification Board. Now, because they all are required to meet the requirements of one association, the Chartered Professional Accountants of British Columbia, the board is no longer needed. As I said, it’s been inactive for more than ten years, and it’s time to clean it up.

S. Bond: Thank you to the minister for her response. I think all of us agree that getting rid of redundant legislation is an important part of the process, so I appreciate that.

If the minister could just confirm for me — and then we can zip through a number of other sections — that subsequent sections 15, 16 and 17 are actually housekeeping and that they are consequential to the change in sections 13 and 14.

Hon. C. James: That’s correct.

Sections 14 to 17 inclusive approved.

On section 18.

S. Bond: I do have a series of questions, because I know that a number of things are being amended here.

I want to recognize the staff, and I appreciate the briefing that they provided. I thank the minister for that opportunity.

Section 18 talks about voting threshold for a special resolution. Could the minister just walk through what the purpose and intent of the section is and whether or not it will actually have a direct impact? Is it practice that we’re now bringing into legislation? Are societies familiar with this process, or will it be a significant change for them?

Hon. C. James: Thank you again to the member. Perhaps I’ll do the same thing I did with the Business Corporations Act — just give a little bit of an overview of the reasons these changes are coming forward.

I think the member has asked an important question about whether this will be a change for societies or whether they’re already operating under these rules.

As the member will know, there were changes made to the Societies Act in 2016. The previous government passed what was called the Societies Transitional Interim Regulation, otherwise known as STIR, before the Societies Act changes passed, to give broad authority for transitional provisions for any unforeseen legal issues that arose. This was a regulation put in place so that if there were implementation challenges in the Societies Act, there was an opportunity through regulation, these interim regulations, to be able to address them.

These changes in the next few sections that we’re talking about take three of those provisions from the regulations and actually add them to the body of the act. These are temporary provisions that societies have already been acting under. It will be continued practice. But instead of them being in regulation, it will move them into the body of the act, and they become part of the act.

Right now, they’re due to automatically repeal in 2019. That was how long the regulation was put in place. Again, this is making sure we take care of putting those into the body of the act before that regulation expires.

S. Bond: Thank you to the minister. In essence, it is making permanent what the transitional measures were put in place to do.

Hon. C. James: That’s correct.

Section 18 approved.

On section 19.

[2:05 p.m.]

S. Bond: This was an interesting little piece of an interesting amendment. The sections are related to how votes are recorded. I think that’s a fair way to describe it. In fact, this now requires that minutes would cover both the yes and the motions that would have been defeated.

Maybe the minister could, first of all, confirm that that’s an accurate description. Then, secondly, were there issues that generated the need to include this?

Hon. C. James: I think both the member and I have sat on enough boards and agencies to know these experiences and to know that there’s probably something that has occurred that has brought forward this kind of resolution and piece.

Just to be clear, these amendments require the text of the resolution. They don’t require the vote, whether the numbers…. It’s just the text of the resolution so that it’s clear there was a resolution that was brought forward. The text of the resolution is included.

Yes, this was feedback. When we were looking at the Societies Act, this was feedback that came forward. People felt that it should be recorded that there was a resolution that came forward. Previously, people would say: “Oh, it didn’t pass. Therefore, it’s not required to be included in the text of the minutes that a resolution came forward.” But this will require that that text be there.

S. Bond: Thank you very much for that clarification. I’m just curious. Was it the public that expressed a concern about transparency — so if a motion was there and not recorded — or was it actually members of societies who, perhaps, had been participants in a process and then did not see a motion that they were concerned about reflected in minutes?

Hon. C. James: This really came from the societies. The societies wanted to make sure that they had the resolution. I think there were probably challenges that could come on both sides — the people who voted for and the people who voted against — to say that they wanted the resolution recorded, that it was there. So it came from feedback from societies.

Section 19 approved.

On section 20.

S. Bond: Again, one of the things that…. I actually appreciate the amendments that the minister has brought forward. We have that discussion often in this House — that there are some practical things that actually help these societies and other organizations be more efficient.

This section, as I understand it — again, I had a good discussion with the minister’s staff about this — is about access to documents. I certainly know — I have seen situations where there are concerns about societies — that there is not necessarily the transparency and access that some would like to see.

Could the minister just walk through the changes and what the purpose of the section is so we can, for the record, look at why the change was necessary, recognizing fully that transparency’s a good thing? We understand that previous to these amendments, this may have generated an order, which is apparently a very significant action, so perhaps just some context about what exactly is being accomplished. I assume it’s to have an escalating process, rather than simply moving straight to an order.

[2:10 p.m.]

Hon. C. James: I think “escalation” is a good way to describe it. Currently, if an order is given, that remains on the record for societies. This gives an opportunity for that escalation to occur, for the registrar, for example, to approach the society to ask them…. They don’t have the power or the authority to order that the document be given, but they can order: “The document has been requested. If you’re not giving it, why aren’t you giving it?”

This gives a chance for that conversation to occur first and that step to occur before a formal order is put in place that then goes on the record for the society.

Section 20 approved.

On section 21.

S. Bond: I see section 21 as housekeeping, if we’re looking at what the substantive pieces are. Would the minister concur that it’s a housekeeping item?

Hon. C. James: I would. This again reflects the fact that you don’t need the authority, because of the changes that happened earlier in the bill.

Section 21 approved.

On section 22.

S. Bond: This section is related to…. It’s about restoring a society if it’s been dissolved for administrative purposes. Previous to this, there was a 21-day waiting period. Could the minister describe, perhaps, an example of why removing that waiting period would be important?

Hon. C. James: Thanks to the member. This provides an opportunity for very simple, straightforward pieces that may not have been taken care of.

I think the best example, probably, is filing the annual report. Societies are required to file an annual report. I certainly know I’ve had personal experience where a society has come to me, where a new board was elected. They didn’t realize that the annual report hadn’t been filed. It wasn’t filed in time, and the entire society was dissolved. Then they go through the full process that they need to, to get back as a society, and then they have the delay, the 21 days.

This just provides more fairness for those simple, straightforward reasons that a society may have been dissolved — not out of intent but just for the follow-up that has not occurred. It gives them a fairer process.

Sections 22 and 23 approved.

On section 24.

S. Bond: Perhaps the minister can just confirm: is section 4 transitional or consequential? It’s a bit confusing in terms of the relationship to a special resolution. If the minister could just clarify that, I’d appreciate it.

[2:15 p.m.]

Hon. C. James: Yes, this is transitional. This is transitioning to the new Societies Act, and it really creates a two-step transition. It’s intended to ensure that membership has an opportunity to be able to thoroughly review what often can be very serious provisions in a society act. So it ensures that unalterable provisions have to go into a bylaw. When they’ve gone into a bylaw, then the society can go through their voting process that they would normally do and vote, based on their existing bylaws, on a resolution.

This is really kind of a check and balance, but it is one of those issues that was in regulation, that is in STIR and that will now go into the body of the act.

Sections 24 to 30 inclusive approved.

On section 31.

D. Barnett: I notice these are very minor changes, Minister, but I do have a couple of questions. First, what is the reason for these changes?

Hon. D. Donaldson: I’ll run over a high-level overview of the changes that are being contemplated here under the Riparian Areas Protection Act. Riparian areas of the province are areas near streams and rivers. Since 2006, regulations have been in place to protect fish habitat and ensure environmental stewardship, under increasing threats from urban development.

The proposed amendment will enhance that protection by giving the minister the authority to publish criteria and methods through a manual for qualified environmental professionals, like registered biologists, to follow when they are carrying out habitat assessments in riparian areas. The change also means that government can reject an assessment report if it’s incomplete or does not comply with the methods or criteria set in the regulations of the manual.

Importantly, this change responds to one of the recommendations from the 2014 B.C. Ombudsperson’s report called Striking a Balance: The Challenges of Using a Professional Reliance Model in Environmental Protection — British Columbia’s Riparian Areas Regulation.

D. Barnett: To the minister: will the setbacks for the riparian regulations change with this? Has there been any consultation with local governments?

Hon. D. Donaldson: No, the setback criteria will not change, and yes, there has been consultation with local government.

Sections 31 and 32 approved.

On section 33.

A. Weaver: Just a very quick question to ask, if the minister….

The Chair: If you’ll just wait one moment, the minister will bring her staff.

A. Weaver: I will, yes.

[2:20 p.m.]

Just a quick question to the minister on this. What is the rationale for moving away from giving approval from the minister to the inspector of municipalities instead?

Hon. S. Robinson: I appreciate the question. This just shifts over to what currently exists for other service bylaws, which is the inspector of municipalities having the responsibility. This is an old piece of legislation that’s just being brought up to current standards, in terms of what the changes have been, so that it fits in with all the other service bylaws that we have, where the inspector of municipalities provides approval.

The Chair: Vancouver–False Creek.

S. Sullivan: That was my question.

Sections 33 to 36 inclusive approved.

On section 37.

M. Lee: Looking at section 37: “The minister may make regulations respecting the procedure to be used for hearings under subsection (3).” What was the reason for this change? And how often does the minister expect to be using this power?

Hon. S. Robinson: This provision and the resulting link to the regulation were inadvertently removed from the act back in 2008. So it severed the link between the act and the regulation. That’s why we’re fixing an old error.

Sections 37 to 42 inclusive approved.

On section 43.

S. Sullivan: Can the minister explain the removal of the references to the Board of Police Commissioners in sections 43 and 44?

Hon. S. Robinson: This removes the obsolete reference to the board. It has been flagged for removal for administrative reasons, including confusion. It’s an outdated reference, so it’s misleading. This is just about tidying it up so that it’s consistent.

Sections 43 and 44 approved.

On section 45.

S. Sullivan: Yes, 206C: “The Council may, subject to the approval of the Lieutenant-Governor in Council, by by-law, provide for a pension for any member of Council.” Removing this power seems…. Well, can the minister explain the necessity of this?

Hon. S. Robinson: It’s the ten-year vesting requirement that has been changed. That’s the only thing that’s been removed. This requirement in the Vancouver Charter is currently in contravention of the provisions of the Pension Benefits Standards Act. So again, this is just about tidying it up so that they read properly.

S. Sullivan: So it used to be ten years?

[2:25 p.m.]

Hon. S. Robinson: Immediate vesting was brought in, in 2015, so it no longer makes sense. It no longer works. They actually contradict each other. The immediate vesting was brought in, in 2015, at which time plan rules were changed to immediate vesting for all plan participants.

S. Sullivan: One additional question. How many other requests from the city of Vancouver to the Vancouver Charter are pending?

Hon. S. Robinson: That’s not part of the legislation, so I really can’t speak to that at this point.

Sections 45 to 55 inclusive approved.

Schedule 1 approved.

Schedule 2 approved.

Title approved.

Hon. D. Eby: I move that the committee rise and report the bill complete without amendment.

Motion approved.

The committee rose at 2:26 p.m.

The House resumed; Mr. Speaker in the chair.

Report and
Third Reading of Bills

BILL 24 — MISCELLANEOUS STATUTES
AMENDMENT ACT (No. 2), 2018

Bill 24, Miscellaneous Statutes Amendment Act (No. 2), 2018, reported complete without amendment, read a third time and passed.

Hon. D. Eby: The second miscellaneous bill is always the best.

I call Bill 22, the Civil Resolution Tribunal Amendment Act, committee stage.

Committee of the Whole House

BILL 22 — CIVIL RESOLUTION
TRIBUNAL AMENDMENT ACT, 2018

The House in Committee of the Whole (Section B) on Bill 22; R. Chouhan in the chair.

The committee met at 2:30 p.m.

Hon. D. Eby: I look forward to questions from members.

Section 1 approved.

The Chair: Shall section 2 pass?

Some Hon. Members: Aye.

The Chair: So ordered.

M. Lee: Sorry, just on section 2, if I can.

The Chair: We’re going back to section 2.

On section 2.

M. Lee: On sub (e)(4) where it states, under this bill, that the tribunal is considered to have this specialized expertise in respect of a claim, what are the implications of that in terms of the nature of the current composition of the tribunal — when the bill says it has specialized expertise?

Hon. D. Eby: This raises two issues. One is: who is going to be on the tribunal? What will their expertise be? And the second is: why do we need to deem it in the act that the tribunal is considered to have specialized expertise?

The people who will be hired for the tribunal will have expertise in motor vehicle matters and in co-ops, in order to hear those specific matters that are contemplated in this act. But it’s not always enough to simply hire people with the expertise. Because the Judicial Review Procedure Act uses, in determining standard of review and determining judicial reviews of tribunals like this, one of the factors they look at is: does the tribunal have specialized expertise?

We wanted to send an unambiguous signal to the courts in making judicial review determinations that in the view of the Legislature, under this act and the structure we’ve set up, this tribunal does have specialized expertise — I don’t want to end with a preposition — upon which areas it is asked to adjudicate.

M. Lee: Thank you, Attorney General, for that response.

Just to further that, in terms of the standard of specialized expertise, could the Attorney General just describe the kind of expertise that members of this tribunal will be staffed with?

Hon. D. Eby: For the civil resolution tribunal, the chair of the tribunal engages in a merit-based hiring process based on the areas of jurisdiction that the tribunal takes on.

Currently, the tribunal deals with small claims matters under $5,000, and it also deals with matters related to strata disputes. Because it’s a dispute resolution tribunal, people with experience in dispute resolution matters are looked for in the hiring process. People with expertise in strata matters, strata law, are looked for in the hiring process. People with expertise in litigation around civil claims are looked for in the hiring process.

It’s not set out in the bill, but it’s reasonable to anticipate that the exact same process will happen for these hirings. The chair sets out a set of criteria for merit-based hiring, interviews candidates and determines which of those candidates have the necessary expertise in order to adjudicate these claims.

[2:35 p.m.]

In this case, we would expect that, again, the chair would be looking for people with dispute resolution capacity, with experience in laws related to motor vehicle accidents in British Columbia and experience in relation to law related to co-ops, housing service providers, and so on.

Sections 2 to 6 inclusive approved.

On section 7.

M. Lee: Just in terms of the addition of this provision (1.1) to provide for an amended initiating notice, given the nature of the initiating notice, can the Attorney General describe for this House what the circumstances would be where an amendment would be filed?

Hon. D. Eby: I noticed that we were just joined in the gallery by a large group of students. I’m not sure whether or not it’s Campbell River Phoenix Middle School. In any event, it might be useful for the students to know that we’re in committee stage on a bill around the civil resolution tribunal that resolves disputes for people in British Columbia. It’s a tribunal, and it’s about giving this tribunal additional powers to hear different disputes.

We’re going to go section by section through the bill. The member from the opposition will be asking me questions about the sections. I’ll do my best to answer. Then the members have the chance to vote on whether or not they allow the section to pass. It’s one of the final stages before third reading of the bill.

With respect to the member’s question on this section, this is an amendment that comes from a request from the civil resolution tribunal itself. The tribunal identified that there was a gap in its ability to amend its initiating notice, and that caused it frustration in trying to resolve things. From time to time, things might change in a dispute, and it might need to amend its initiating notice, but it didn’t have a statutory authority to do that. That’s what this is aimed at. It was a request from the tribunal to facilitate its processes.

Sections 7 and 8 approved.

On section 9.

M. Lee: This provision under the current act…. Perhaps I could just start with this provision by just understanding, under the current act, the reason for which government may not be a party to a tribunal proceeding. If the Attorney General could just explain the background of the current provision. Then we can go on to the proposed amendment.

Hon. D. Eby: When the tribunal was initially set up by the previous government, the decision was made not to have government as a party. There were a lot of questions about the tribunal when it was being set up. How would it operate? Would it operate well? Would it be sufficiently independent of government to preserve confidence in the public around disputes resolved in front of it? The decision was made to leave government out as a party so that disputes would continue to be resolved, where government is a party, exclusively in front of the courts.

It also brought into it concerns around the Crown Proceeding Act, which would also have to be amended in order to allow government to appear in front of the tribunal. That is why, I understand — although I wasn’t there — the original decision was made, without commenting on the rightness or wrongness of those justifications.

M. Lee: Thank you for that. I appreciate your understanding of that. I wasn’t there either, but thank you for that. It sounds, on its surface, to be a good summary.

In terms of the proposed amendment, then, under section 9 of the bill to section 9 of the act, perhaps, first, the Attorney General could just describe…. When we say “government” in this case, what particular…? How will government represent itself in a proceeding on, say, sub 9(1)(b), an accident claim?

[2:40 p.m.]

Hon. D. Eby: There are a number of ways in which government could end up in front of this tribunal. The specific goal here, obviously, isn’t related to co-ops, which is another section of the act that gives this tribunal different powers. This is related to motor vehicle accidents.

The government could actually own the vehicle that’s involved in the collision, which could bring the government in front of the tribunal. In addition, a party could allege, in front of the tribunal, that the road was built poorly or that there were insufficient safeguards on the road. There should have been a guardrail. There should have been a stop sign. There should have been a roundabout instead of an intersection. Whatever the allegation is.

The concern was that if we didn’t have this, all an individual would need to do to get out of the tribunal and back into the Supreme Court system would be to allege, “Oh, well, there was a problem with the road,” and have that determined in…. That would take it outside of the authority of the tribunal, and you’d be right off to the Supreme Court again.

The goal of this — which is to get minor injury disputes and minor motor vehicle matters resolved quickly, efficiently and proportionally through the civil resolution tribunal — would be frustrated. People would be able to get up to the B.C. Supreme Court and then a multi-year process with all of the attendant expenses and processes. So that’s why, specifically, the member finds this section and this amendment in here.

M. Lee: In terms of the actual workings of the tribunal, then, when an adjuster from ICBC might be called into the tribunal process, this section is not intended to cover that situation. Is that correct?

Hon. D. Eby: I’m advised that ICBC has always been able to appear in front of tribunals. They’re not defined as “government” for the restriction around it being able to appear in front of tribunals. Government, for that purpose, is considered to be core government, Her Majesty the Queen in Right of British Columbia, not Crown corporations and so on.

M. Lee: Just in terms of the Crown Proceeding Act, will there be necessary amendments to that act, necessary to include now that the government can appear before or be a party to a tribunal proceeding?

Hon. D. Eby: It’s section 38 of this bill. It’s a consequential amendment to the Crown Proceeding Act. If the member wants, we can approve all of the sections and get right to it.

Section 9 approved.

On section 10.

M. Lee: In terms of this particular provision, in terms of the nature of it, what sorts of claims do we expect might arise which will necessitate the application of this provision?

Hon. D. Eby: The only section that is amended here is subsection (e), which says: “the tribunal is satisfied that it has been established, on the basis of satisfactory evidence, that the claim or the dispute is beyond the jurisdiction of the tribunal.”

This is a section that allows the tribunal to say, “Hold on; we don’t want to hear this,” or: “We don’t have authority to hear this; this should go to B.C. Supreme Court to be resolved.” The section here is added because we’ve put a financial limit on the authority of the tribunal to hear matters that come before it, and that limit is $50,000.

[2:45 p.m.]

So if it’s less than $50,000, the tribunal can hear it. But if it’s more than $50,000, the tribunal should be, if it can be demonstrated as subsection (e) says…. If the person or their lawyer or the claimant can show up and say, “This claim is worth more than $50,000. You don’t have authority to hear this,” and they can present satisfactory evidence that, yes, it is worth more than $50,000, then it gets bumped up to B.C. Supreme Court. The tribunal can refuse to hear it because it’s outside the authority of the tribunal.

M. Lee: Just as a follow-on to that response, when does this determination need to be made, under sub (e)?

Hon. D. Eby: This could be made at any time, this decision by the tribunal, up to the point of adjudication by the tribunal — in other words, up to the point of them making a decision on the matter.

Sections 10 and 11 approved.

On section 12.

M. Lee: In terms of the elimination period. I understand, from the briefing that your office kindly arranged, that the previous provisions were a bit stop and start. I wondered, though, if, first of all, the Attorney General could just walk us through the changes that are being made here, in terms of how limitation periods would apply, just for the record. Then I’ll go on to ask a few more questions about that.

Hon. D. Eby: There are two changes here. The first is: if you file in one place in the tribunal and you shouldn’t have filed in the tribunal and should have gone somewhere else, it was felt it was desirable to have a fixed amount of time that people understood — 28 days — to get refiled in the proper place.

The old provision said that the limitation period stopped when you filed at the initial place, but then it restarted once you determined that you were in the wrong place. Then you had the remainder of the limitation period to file in the new place. That was kind of unpredictable for people. They didn’t really understand how much time they had. People could miss out. So it was thought that a clear period of 28 days, after you find out you’re in the wrong place, is enough time for people to get themselves together and show up in the right court.

The other change is a scenario where somebody might show up at the civil resolution tribunal and say: “Hello, civil resolution tribunal. I have a claim that I would like to be resolved, and I’m on the last day of my limitation period.” They say: “No problem.” They fail, though, to issue an initiating document for 24 hours. There’s some sort of a technical problem, or there’s an issue of some kind — some responsibility of the civil resolution tribunal. They don’t actually issue the necessary initiating document.

[2:50 p.m.]

Because of that possibility of a gap in the limitation period, and the claim only being considered as being filed with the initiating document, we wanted to say: “If you show up at the civil resolution tribunal….” I say “show up” metaphorically, because some people might do this all on line. If you show up there and you say, “Okay, I have this claim,” and you request resolution of your claim, that is the date that should be considered for the limitation period, not when the civil resolution tribunal issues the initiating document. That is exclusively within the control of the claimant, and everything after that is not.

We want to say that because of the limitation period policy, this is the responsibility of the claimant, so it should be in the control of the claimant when the claim is considered to be received. I hope that is clear. If not, I can try to explain it, take another run at it.

M. Lee: I appreciate that response as well. Just in terms of the 28-day period, the Attorney General just characterized that or described that as being the wrong forum perhaps. But is it also not applicable where perhaps there’s a determination that this is a matter that should go to the next level in terms of a court? Is that the case in terms of continuing the claim in a different court level?

Hon. D. Eby: The member is correct, yes.

M. Lee: In circumstances where that’s determined…. It may be because it’s beyond the jurisdiction of the tribunal, or some other provision is triggered within this bill. Has the period of 28 days, that period of time, been reviewed from a point of view that that would be a sufficient period of time to enable a claimant to regroup and move to the next level?

Hon. D. Eby: The 28 days was chosen for a couple of reasons. First, our statutory drafters prefer multiples of weeks because people using the laws find it easier to calculate timelines when it’s four weeks versus 30 days. It can be more confusing to have an uneven number of weeks. That’s sort of a statutory interpretation and statutory use kind of policy that the government has. That is not unique to our government, but it started a while ago.

The second is that, currently, appeals have 30-day time periods. So it’s not unusual in terms of asking somebody to regroup, as the member says, and get themselves into the proper venue. The third policy piece is that the person has had two years to get themselves to the civil resolution tribunal in the first place. We do really want disputes to be resolved quickly. We want them to be resolved, ideally, within 60 to 90 days. This is also trying to feed into that goal of getting disputes resolved as quickly as possible.

M. Lee: Are there any circumstances under which that period might be extended for reasons of the claimant’s situation — financial, emotional or otherwise? I’m just wondering if there’s any consideration of any exceptions to that 28-day period.

Hon. D. Eby: These types of limitation periods in this bill are no exception. They’re typically prefaced by “unless the court otherwise orders.” It makes it possible for the person to appear in front of the court with their evidence about why they took longer than the limitation period and for the court to make a determination about whether that was reasonable or not.

Sections 12 to 14 inclusive approved.

On section 15.

M. Lee: Under section 15 of the bill, there are certain criteria to determine, for the tribunal to consider, where there’s a substantial likelihood that damages will exceed the tribunal limit amount. If the Attorney General could please take us through what that criteria might be to determine that.

[2:55 p.m.]

Hon. D. Eby: The criteria are justice and fairness. The court is asked to evaluate whether it is just and fair in all of the circumstances to continue with the course of action that’s recommended in the statute.

It was difficult for us to imagine the different scenarios that a court might face, in terms of a scenario where it might be unjust or unfair to refer somebody back to the tribunal or not to resolve it at the trial level. There’s an infinite number of possible scenarios that a court might face in this situation. We thought it better to, instead of trying to prescribe the situation — ill health, a particular need for urgency…. It’s hard to articulate these kinds of principles.

What we say is: “We have confidence that the court can make a determination in the judicial exercise of discretion that it is just and fair in this particular circumstance for us to proceed.”

Now, with that said, the intent of this section is to say to the court: “Listen. We’ve set up this tribunal. We set up the tribunal because we have these values around resolving claims quickly, around having a proportionate response for minor injuries and for smaller disputes, not spending a huge amount of time and money on elaborate court processes that are set up with protections that are far beyond what’s necessary to resolve a minor injury dispute. For those reasons, we think you should decline to exercise the authority to hear these disputes. We think you should send them back to the tribunal.”

But there might be the odd case where the court goes: “You know what? In the interest of justice and fairness, we just need to resolve this now.” It’s hard to say what exactly that would be, but we have confidence that the courts can exercise that authority and also recognize the legislative intent here, which is to have a proportionate response in the interests of ratepayers and in the interests of the public to have certainty, if they’re involved in a collision, around what their claim might be.

M. Lee: The test of substantial likelihood is going to be as determined by the tribunal. That’s the test for the tribunal to work through. Is there any guidance on that test?

[3:00 p.m.]

Hon. D. Eby: I thought I provided a pretty fantastic answer on the last one, hon. Chair. The problem with that is that sometimes you can provide a great answer and it might not be right.

I’ll direct the member to section 16.3. Actually, 16.3(1) sets out some of the criteria that a court can consider in determining whether it’s in the interest of justice and fairness to make a determination. These include:

“(a) whether an issue raised by the claim or dispute is of such importance that the claim or dispute would benefit from being adjudicated by that court to establish a precedent;

“(b) whether an issue raised by the claim or dispute relates to a constitutional question or the Human Rights Code;

“(c) whether an issue raised by the claim or dispute is sufficiently complex to benefit from being adjudicated by that court;

“(d) whether all of the parties to the claim or dispute agree that the claim or dispute should not be adjudicated by the tribunal;

“(e) whether the claim or dispute should be heard together with a claim or dispute currently before that court;

“(f) whether the use of electronic communication tools in the adjudication process of the tribunal would be unfair to a party in a way that cannot be accommodated by the tribunal.”

That’s a better answer because it actually is correct.

I’m going to have to ask the member…. Because we got sucked into a discussion around justice and fairness, I lost the plot of his most recent question. So if he could repeat his question now that I’ve corrected the last answer.

M. Lee: I appreciate that clarification and thank you for that.

I was just referring back to the first part of that, in the line…. Obviously, the term “substantial likelihood” that’s used in the third-to-last line of sub (2) is really the test that’s being utilized there. Where “a party has established that there is a substantial likelihood that damages would exceed the tribunal limit amount,” I’m just wondering what the test is that a party is trying to get over when we’re talking about substantial likelihood.

Hon. D. Eby: The member has articulated the test, which is a substantial likelihood. This is like the test of reasonableness or other administrative law tests that tie people up in knots sometimes. But in any event, substantial likelihood is different from likelihood. It’s a higher standard than a simple likelihood. It’s a signal to say that it needs to be pretty clear that this amount is in excess of the jurisdiction of the tribunal.

We want the tribunal to hear the majority of disputes. I don’t want to import into the statute a bunch of language that isn’t there. The test is a substantial likelihood, and the tribunal and the courts will be determining it within that framework that’s set out in the language of the statute. But the word “substantial” is an important one.

M. Lee: Thank you for that response as well. Not to belabour the point, but in terms of when we talk about damages, particularly with respect to accident claims, that determination of whether there’s a substantial likelihood that the damages itself will exceed the tribunal limit amount presumes, I suppose…. This is what I would like to confirm with the Attorney General. We’re talking when we’re going through this dispute resolution process, there’s some determination by the court that, other than in the interest of justice and fairness and those considerations not being triggered, really the tribunal should consider whether they have jurisdiction in this matter or they don’t. So that substantial likelihood is not a time-based question, then. That is really what I would like confirmation of.

[3:05 p.m.]

Hon. D. Eby: I think the member’s question is an important one. For this section, the intent is that it’s at the time the court is making the determination — so at that fixed moment in time when the court has the evidence in front of them about what the anticipated damages are, and they’re making that determination: is it a substantial likelihood that it’s in excess of the jurisdiction of the tribunal? It’s at that time. So that is a point in time.

The tribunal itself can make a determination at any time in the process that: “Oh, this has gone beyond our jurisdiction. We’re going to kick it up to the Supreme Court.” I think that is getting at what the member was asking. I invite the member to clarify if it isn’t.

The Chair: Shall section 15 pass?

Some Hon. Members: Aye.

M. Lee: Sorry. Just tracking through. Just back on section 15, on sub 16.3(2).

The Chair: Back to section 15?

M. Lee: Yes, which is an amendment to sub 16.3(2). Sorry, sub 16.3(1)(f) — the question around electronic communication tools. As I understand it, much of the CRT’s work can be on line or through electronic communication. Is that something that, in the case of accident claims, the Attorney General and the ministry see as a viable form for which accident claims will continue to be heard, or will electronic communication not be as effective or as fair to the claimant?

Hon. D. Eby: It’s always open to the civil resolution tribunal to have an in-person hearing, but for the vast majority of disputes, the medical evidence is going to speak for itself. The records provided by the claimant and the respondent — I’m not sure what terms, actually, the CRT uses, but by the two parties to the matter — will be largely paper-based. If it’s necessary, maybe to evaluate credibility or something like that, they can meet in person.

I think that sub 16.3(1)(f) was really aimed at the possibility that the person who’s making the claim has some sort of a disability, perhaps, that makes it difficult for them to use an electronic device, and it would be unfair to ask them to appear that way. We can probably think of other scenarios. It’s meant to anticipate that it might be more just or fair, in a particular situation, to have a person appear through the court.

Section 15 approved.

On section 16.

M. Lee: Section 16 proposes an addition to the act to provide for lawyer representation. Just to ask: under the current act and regime, how many lawyers would typically appear, if any, before the tribunal in any given year?

Hon. D. Eby: We don’t have that information. I’m sure we could track it down for the member. Under the existing act, there was an intent, when the civil resolution tribunal was set up, that people could appear in front of it without counsel — in fact, that it was less desirable to have counsel at the tribunal, to the point that the government at the time passed a provision that said you can’t actually, for many disputes, have a lawyer, unless you get special permission to appear in front of the tribunal with a lawyer.

[3:10 p.m.]

This section, for claims under $50,000 for the issue of whether or not someone has a minor injury, recognizes that these are more substantial claims than the tribunal has previously heard. Currently they hear disputes under $5,000 for small claims, and they hear strata disputes and so on. So the intention of this is to give the person the ability to appear with a lawyer in this dispute. Let’s say there’s a dispute around whether or not they have a minor injury or simply to resolve the claim itself towards the higher end of $50,000.

It’s very possible that some lawyers would find interest in assisting clients in these kinds of matters. But our intent is the same as the original intent was in front of the tribunal — that people should be able to show up on their own, have the dispute resolved with the active assistance of the tribunal and do it without having to pay legal fees, so that the majority of the claim amount goes to the claimant. That’s the intention. We also wanted to say: “If you want to show up with a lawyer, if you want to pay a lawyer to come, you can do that here as well, if you wish.”

M. Lee: I understand that it is contemplated that in a tribunal proceeding in respect of an accident claim, which is what this provision would speak to, ICBC may also be attending the tribunal hearing with an adjuster. Is that correct?

Hon. D. Eby: I see that we’re joined by another class in the gallery. I’ll just refresh, for our committee, that what we’re doing here is reviewing the Civil Resolution Tribunal Act. This is a tribunal in the province that hears disputes of a smaller nature, under $5,000, currently strata disputes. We’re amending it to allow them to hear motor vehicle accident claim amounts up to $50,000 and co-op disputes as well. We’re going section by section through the bill. The member of the opposition is asking me questions. I’m doing my best to answer them. And at the end of each section, we vote whether or not it should pass, before third reading of the bill.

The member’s question was about ICBC’s appearance. The intention is currently that an ICBC adjuster would attend. ICBC would be the respondent to the claim. So when someone who has been in an accident doesn’t agree with what the adjuster has said their claim is worth — if they say no, it’s not worth $10,000; it’s worth $20,000 — they can go to the civil resolution tribunal to have that dispute heard. There has to be someone on the other side saying here’s what we think the claim is worth. Currently, ICBC’s thinking is…. We don’t have a system like this right now, but currently, their thinking is that that person would be an adjuster. ICBC adjusters are not lawyers. They are specialists in determining the value of claims.

So those people would be attending the hearing, making representations to the tribunal about what their position is — what the claim is worth. The person who was in the accident makes representation, with their medical records and their costs and so on, to the tribunal about what they think the claim is worth. Then the tribunal would make a decision.

It is possible that there are complicated legal disputes that would show up in front of the tribunal — even though it’s hearing smaller matters — and someone might show up with a lawyer. In that case, ICBC might show up with a lawyer too. But the intent is to help get costs down at ICBC and that they wouldn’t be sending lawyers. They don’t want to be spending money on lawyers. That’s why we’re setting this system up — to get the administrative cost down around these claims, to have them resolved more quickly and to have them resolved without a bunch of legal expenses on both sides so that the money actually goes to accident victims.

M. Lee: Well, thank you for that response. I would just like to ask further, in terms of that process, whether a claimant or individual appearing before the tribunal would get notice of the fact that an adjuster would be at the tribunal hearing.

[3:15 p.m.]

Secondly, if for some reason…. What would trigger an adjuster to bring along legal counsel to that hearing? Is it the case where it appears that the claimant decides to exercise their right under this section to be represented in the tribunal proceeding? What are the notice provisions that might relate to this?

Hon. D. Eby: Given the size of the claims that would be appearing in front of the tribunal, it doesn’t make a lot of financial sense. The size of the disputed amounts between what ICBC is prepared to pay and what the person is claiming, that gap…. These are relatively — and it sounds strange, because it’s maybe $10,000 or $15,000 — small amounts when it comes to paying a lawyer to show up to argue this file on behalf of ICBC.

It wouldn’t simply be that someone on the other side shows up with their lawyer, and therefore ICBC sends a lawyer, because the costs wouldn’t make sense.

What we’re more concerned about is that in the early days of the tribunal, there will be a bunch of decisions made by the tribunal. And then there will be appeals where the case law is set down around: what are the ground rules for the tribunal, what are the processes, what is the court’s oversight of the tribunal and so on. These precedents are really important in ensuring that the tribunal works as intended.

There may be a case where, although it doesn’t make financial sense, necessarily, given the amount that is in dispute with ICBC, someone shows up with a lawyer, and we know that the intent is to try to set a precedent in the matter. Then ICBC might choose to send a lawyer.

It wouldn’t strictly be financial. It wouldn’t simply be that the other party showed up with a lawyer. It would really be: is this a complex legal argument that has the possibility of setting some kind of a precedent that ICBC needs to make an appearance with a lawyer?

In fact, it’s very likely that in the majority of cases where someone would show up with a lawyer, an ICBC adjustor would show up on the other side just for the simple financial reason of it not making financial sense for the corporation to be sending a lawyer to every single hearing.

M. Lee: Well, thank you for that response as well.

I guess that I appreciate that we’re trying to reduce the administrative burden here. Just under the current situation and with ICBC adjustors appearing in a tribunal hearing, obviously there’s a bit of an unlevel field there.

I appreciate the tribunal plays a role to help facilitate the dispute itself, but in terms of understanding the nature of a minor injury and any complexity that might be around the recovery of any claims in respect of that, particularly if it goes beyond the $5,500 limit up to the $50,000 limit….

What the question and the concern would be around whether this provision is going to lead to…. At least in the initial period of time, as the Attorney General just mentioned, I do expect, and I understand, that a lot of precedents may be set as to how certain types of claims will be dealt with by this tribunal.

Is there a concern, in terms of fairness for the actual individuals, that they may not have the ability to retain legal counsel because of the limits involved? Is there a concern here that the Attorney General might see in this being an unlevel playing field in the way that this is being structured?

Hon. D. Eby: The intent is to have this tribunal operate in most cases without counsel. You’ll see, in this section that we’re talking about, that we’re making an exception, saying: “Look, if you really want to bring a lawyer here, given the amount of money that you’re going to pay in legal fees and the amount that’s under dispute, which by definition under this act, is less than $50,000…. If you really want to bring a lawyer, you can bring a lawyer. But the amount of money that you’re going to spend on your lawyer is going to eat up a lot of your award, so it’s probably not to your interest.” We wanted to provide people with the right to do that.

For ICBC, it’s the exact same thing. The amount of money involved in these disputes will not justify, in the vast majority of cases, showing up with a lawyer.

[3:20 p.m.]

The concern that may cause the corporation to send a lawyer to a hearing, especially in the early days, might be that this case, for some reason, might set a precedent that could undermine the intention of how this thing is intended to operate. So they may, in that scenario, be sending a lawyer.

ICBC spends somewhere between $120 to $300 an hour for the lawyers that it has on contract. It does not take many hours of getting familiar with the background on the file, going to the hearing, and then the hearing is adjourned, and then you’ve got to appear in front of the…. It doesn’t take long to eat up a lot of money appearing with a lawyer instead of just sending the adjustor, who is an expert in claims who can provide the tribunal with the information that they need.

That will be ICBC’s approach. That’s the intention here. It’s not different for ICBC than it is for a claimant, in that, given the value of the claims here, it just doesn’t tend to make sense for counsel to appear.

M. Lee: I appreciate, again, that in the early stages of this tribunal, as it might move forward if it’s passed in this House, is the movement towards being based on what might be the adjustor’s understanding of similar minor injuries or accident claims of a similar nature.

Presumably, of course, ICBC has that data bank today. That data bank is utilized by the adjustor to go into a proceeding. Of course, every claimant, presumably, under a new regime — particularly with the limits that are being set, potentially, under the Insurance (Vehicle) Act and in this tribunal proceeding…. Every claimant, I presume, will feel like: “My situation justifies more recovery than what might be presented.” You could see that there will be scenarios where a claimant might want to bring legal counsel in order to test this tribunal’s view on the recovery. I think that that is the concern.

I’ll just say that where these limits are applying, the question would be: is it as simple for the tribunal and the adjustors to determine what the value of a minor injury would be in the case of this tribunal versus something that might be prejudicial to the claimant going forward? This a determination that’s being made in the current context when there’s the initial diagnosis and what’s being presented to the tribunal.

Would the Attorney General at least see that there’s a possibility that this might be prejudicial to the claimant as they’re appearing before the tribunal, in terms of unrepresented or represented, the way this is structured?

Hon. D. Eby: I’d argue, actually, that this situation could provide a claimant with a significant benefit that’s not available currently. That is, if you’re not sure about the nature of the injury that you’ve received currently — you’re not sure about what your claim is worth — there’s no option. You cannot do anything, really, in my opinion. You can. I mean, logistically you can go to B.C. Supreme Court by yourself. You can file your own claim. You can appear on your own account. It’s really difficult. It’s really hard to do.

Practically, you have to hire a lawyer to have your claim independently reviewed and assessed. This process that we’re setting out allows somebody to go and have their claim independently assessed without a lawyer. It’s set up in that way, and the tribunal provides a great deal of assistance currently to people who appear in front of it, to help them to get through the process without counsel.

You can go, and you might have the tribunal review your claim and say: “This is in excess of our jurisdiction. You have to go to the B.C. Supreme Court.” Then you would know: “Okay, now is the time when I need to go and to hire a lawyer and go ahead.” But you can’t do that currently; you’re on your own, unless you go and hire counsel to assist you through the B.C. Supreme Court system.

[3:25 p.m.]

So in some ways, certainly, I would argue that this provides a benefit to people in determining their claims with an independent assessor — somebody independent of ICBC; is the adjudicator giving me a fair deal here? — in a way that currently they can’t do.

M. Lee: Thank you for that response. I guess that this goes back to, then, in terms of the independent adjudicator, the kind of expertise that the tribunal will have. We’ve talked earlier that, of course, the core competence would be dispute resolution, but in terms of assisting both parties to come to resolution on the right claim amount….

I’d like to come back to the Attorney General in terms of the kind of expertise that will be employed in terms of medical understanding of personal injury and the complexity of what is currently in the proposed definition of minor injury, including psychological, psychiatric, chronic conditions, as well as pain syndromes. Will the expertise of the tribunal be there to assist in this? And to what degree do they have the capabilities of assessing the amounts that would be appropriate for recovery purposes?

Hon. D. Eby: I’m speculating here, but I think that it’s not unreasonable to expect that there are going to be a significant number of personal injury lawyers who are going to be taking these jobs — people who have knowledge and expertise in assessing claims and that have knowledge about the law, people with experience in personal injury law. I think there’s a distinct possibility we’ll see a number of lawyers with personal injury experience applying for these jobs at the tribunal.

There are a number of different categories of expertise that we could anticipate that the tribunal might draw on, but certainly, lawyers are one obvious group — people with legal training and experience in personal injury.

Sections 16 and 17 approved.

On section 18.

M. Lee: This provision is an amendment in terms of the area around experts. So I’d ask, first of all, of the Attorney General what the intent is. It seems, under (e)(ii), that there would be a desire to limit the number of experts that a party may call. So what, overall, is the plan here in terms of experts? I know that there’s obviously a requirement that expert evidence be done jointly. What’s the overall rationale and plan for this provision?

Hon. D. Eby: ICBC currently, for claims under $50,000, pays about $25 million a year for expert reports. Obviously, that is a very significant cost. It’s arguable, in my opinion, whether it provides a great benefit to people appearing in front of court. To have two experts or three experts on each side, each saying the opposite of the other expert, doesn’t particularly help the court in determining the value of the claim.

So for minor injuries, for claims under $50,000, we want a process that is proportionate to the injury and the value of the claim. It means that the tribunal could say, “We don’t need a whole bunch of experts here. We would like for you, for example, to work together and find an expert that you can both agree on to do the assessment, and that’s that,” or: “You know what? We need a little bit more expertise here. This is a complicated factual matter, so we’re going to allow more experts here, but we’re going to limit it within this range.”

We want the tribunal to be able to hear expert evidence, but we want them to maintain control over it, because it’s a significant cost driver.

[3:30 p.m.]

M. Lee: I appreciate the concern around understanding the context and the limits and the proportionate nature.

In terms of a single expert, in theory, being able to take on this retainer, is the thinking that…? Where do we source these single experts in the sense of whether they’ve traditionally been on the plaintiff side or whether they’ve been on the ICBC side? Just a concern around how an expert can jointly advise both sides to this dispute.

Hon. D. Eby: Given the adversarial nature of a litigation process, it has been the experience of ICBC, and I expect on the claimant’s side as well, that doctors are reluctant to participate, because they have to sit on the stand and have their CV taken apart and be accused of interpreting records improperly and not understanding their profession. People are reluctant to do it.

[L. Reid in the chair.]

The hope is that this may actually significantly expand the expert pool if the understanding is that both parties are asking the doctor to provide their best medical opinion about what the state of the evidence is. Our hope is that, actually, there will be more doctors available to do this kind of work and everyone will be less reliant on what are known as either plaintiff- or defence-side experts — that the pool of doctors willing to do this kind of work will actually increase.

M. Lee: Well, I suppose that given the adversarial nature of this, it will be a situation where, with the tribunal adjudicating and a single expert, there may, at times, be disagreements between the two parties in terms of the advice they’re receiving from the expert. Is it intended that this would preclude any second opinion in this regard?

Hon. D. Eby: It’s almost guaranteed when the expert renders his or her opinion that one of the two parties is not going to see what they had hoped to see. It’s possible that both parties will be unhappy. There is the possibility here for the tribunal to allow additional experts, certainly. It’s within their authority to allow additional experts. But I would think it would be highly unlikely that the tribunal would allow additional experts simply because one or the other of the parties — or perhaps both of the parties — was unhappy with the findings of the expert about the extent of the injury.

You’ll see, in subsection 32(1)(e), the ability for the tribunal to either require a joint expert or limit the number of experts a party may call, which contemplates, of course, that there may be more than one joint expert, or “by limiting the giving of expert evidence in respect of one or more issues in a claim to an expert appointed by the tribunal.” So the tribunal, as an independent tribunal, could also potentially appoint an expert in order to provide evidence on a contentious matter.

M. Lee: One other question about experts would be: what criteria would the tribunal be using in order to select experts?

Hon. D. Eby: The question of which expert to call would really depend on the area of expertise that’s required. We’ve been talking a lot about medical experts, but that’s just one category of expert. In matters like this, you might have someone with an expertise in reconstruction of a collision, in understanding how fast a vehicle may have been travelling or any kind of expertise that the tribunal might need. It’s not a closed category. The tribunal might need expert evidence on any number of topics.

[3:35 p.m.]

Section 18 approved.

On section 19.

M. Lee: In respect of this provision, if I could ask the Attorney General to comment on what the current applicable time periods are for the tribunal to render a decision.

Hon. D. Eby: Currently there’s no time period prescribed by the rules. The section, as it reads currently, implied that there was one. There isn’t one. So the tribunal wanted the law to reflect the reality.

They are resolving most matters within 60 to 90 days and have a very good track record of resolving disputes in a timely manner. It may be that at some point in the future they would see fit to have a time limit on resolving matters. In that case, there might be a rule, but currently there isn’t. Putting in the words “if any” just ensures that the law better reflects the practice.

M. Lee: I understand from my colleagues that, at this point, I should ask for a recess from this committee stage on Bill 22.

Hon. D. Eby: I move that we rise and report progress.

Motion approved.

The committee rose at 3:36 p.m.

The House resumed; Mr. Speaker in the chair.

Committee of the Whole (Section B), having reported progress, was granted leave to sit again.

Hon. D. Eby: I call second reading of Bill 20, the Insurance (Vehicle) Amendment Act.

[L. Reid in the chair.]

Second Reading of Bills

BILL 20 — INSURANCE (VEHICLE)
AMENDMENT ACT, 2018

Hon. D. Eby: I move that Bill 20 now be read a second time.

The amendments in this bill set the foundation to put the Insurance Corporation of British Columbia on a stable and sustainable financial footing while keeping insurance rates fair and affordable for drivers in British Columbia.

It will also ensure a framework is in place for an enhanced care–based system that makes taking care of people injured in a vehicle accident ICBC’s top priority, with increased benefits for the treatments and support they need to get better.

[3:40 p.m.]

The amendments will allow for a retroactive increase in the maximum limit payable as accident benefits for medical and rehabilitation costs for accidents occurring on or after January 1, 2018. This will support our February commitment to increase the limit of accident benefits payable from $150,000 to $300,000 for accidents occurring on or after that date.

The amendments also provide for an expanded list of health care providers that ICBC must pay as accident benefits — for example, including massage therapists, occupational therapists, physical therapists and chiropractors — and allow government to set the amounts payable as accident benefits for those services.

These changes would be effective for accidents occurring on or after April 1, 2019, and will ensure that every person involved in a vehicle accident is able to access the health services they need to get better. Specific increases to ICBC’s accident benefits will be defined in regulation.

The bill will also limit the amount recoverable in an accident claim to the amount payable as health service accident benefits. To ensure the amounts payable reflect a fair rate for health care practitioners, the minister responsible will be required to initiate a review of the amounts payable for the provision of health care as accident benefits every five years.

The review must be conducted in consultation with ICBC and any other persons or organizations the minister considers appropriate, and a report on the results of the review, including any recommendations included in the review, must be tabled before the Legislative Assembly. This will ensure government is held to account on the accident benefits provided so that we don’t again see this current situation where accident benefits haven’t increased in 27 years, since 1991, and people must turn to litigation to recover their health care costs.

The bill will also provide that certain medical and wage-loss benefits must be deducted from a damage award in a vehicle claim and that a person who pays or provides a medical or wage benefit cannot recover from the at-fault driver or their insurer.

To ensure that ICBC funds are directed towards helping people get better through improved accident benefits and in support of ICBC’s financial sustainability, this bill includes provisions to limit the amount a claimant can recover as damages for non-pecuniary pain and suffering resulting from a minor injury that occurs on or after April 1, 2019. The supporting regulations will prescribe the maximum limit and allow for considerations such as contributory negligence and instances where a person sustains both a minor and non-minor injury.

The bill will introduce a new legal definition of what constitutes a minor injury in B.C., which includes abrasions, contusions, lacerations, sprains and strains, pain syndrome, psychological or psychiatric conditions or other prescribed injuries, whether or not chronic, where the injury doesn’t result in a serious impairment or a permanent serious disfigurement.

This will be further defined in regulation to ensure that only minor injuries are captured in the legislation. Serious injuries, like broken bones, as well as more catastrophic injuries will not be captured under the definition. If a person’s symptoms persist beyond 12 months and have a significant impact on their activities of daily living, such as work or school, the injury would no longer be considered minor.

The legislation will provide for prescribed medical and diagnostic treatment protocols for minor injuries. If a person follows these protocols and their minor injury still worsens to the point of becoming non-minor, then the limit on pain and suffering damages would no longer apply. If that person fails to follow the protocols, the limit on pain and suffering damages may still be applied in some circumstances.

Be assured that the diagnosis of an injury will be determined by a medical professional and not ICBC, the same as today. Government is consulting with the medical and health care community in order to determine the most appropriate definition of “minor injury,” protocols and fair rates for treatment.

The bill also includes appropriate regulation-making authority for future product and rate premium design changes, including announced enhancement tax and benefits and various housekeeping amendments for such purposes as clarifying the meaning of terms used in the legislation, such as the terms “accident” and “certificate,” the authorization to collect personal information and to improve readability, as well as amendments consequential to the key changes discussed earlier.

In summary, these and other provisions that bring about ICBC insurance product reform are expected to save the corporation more than $1 billion annually at full implementation and will also lay the foundation for a care-based system that focuses and invests primarily in helping people recover from vehicle accidents.

J. Yap: Everyone in this House understands that there are challenges at ICBC. There are challenges with auto insurers across North America. Crashes, injury and vehicle damage claims are all increasing dramatically. These trends are not unique to British Columbia.

[3:45 p.m.]

In government, we took a series of actions to keep insurance rates affordable, including transferring $1.5 billion from optional to basic and increasing penalties for distracted driving, which now are among the most severe in Canada. We increased premiums for luxury cars. Procurement strategies in the Lower Mainland were brought in to improve the bottom line. We reduced overhead at ICBC, including 500 fewer managers and a 50 percent reduction in the executive compensation. A new IT system saves $90 million per year. Measures to combat fraud resulted in $44 million per year in savings. And a new windshield repair program.

These measures helped, but as members know, the sudden and dramatic rise of collisions and injury claims has continued. So I want to be very clear. We recognize that government had to take additional action to keep the rates down; government, however, has to strike a balance. Yes, we have to control costs, but we also have to ensure that British Columbians have affordable premiums and receive fair compensation when injured.

With that said, I have concerns with some of the specifics of this bill. For instance, this bill will actually restrict options for victims of a traffic accident. Currently if you require physical therapy, chiropractic care or some other ongoing treatment for an injury suffered in an accident, it’s taken care of. But this bill says ICBC will determine market rates. In other words, if your chiropractor charges more than ICBC deems acceptable, you’re on the hook.

I recognize that the intent is to ensure that treatment providers don’t charge more when they know insurance is paying, but it assumes that claimants have easy access to a wide range of good treatment providers and ignores that treatment rates may vary from community to community. If the more expensive option is all that’s available or appropriate, claimants are either out of luck or out of pocket.

This bill also appears to have holes and vague wording. I had the opportunity yesterday to speak to Bill 22, which is closely related to this bill and raises many of the same questions. I understand the intent is to control rising injury costs, but it’s difficult to understand the mechanism being put in place here.

What’s attracted the most attention is the cap for minor injuries that don’t result in serious impairment. It’s not hard to understand why. I think most British Columbians are wary of caps on compensation. I appreciate that the cap is not intended to apply to lost wages or treatment, but concepts like minor injury and serious impairment are not necessarily clear and are left to regulation.

Crucially, this bill does not address mental injury. Often after a motor vehicle accident, a victim may experience mental or emotional trauma and suffer lost wages as a result. I’m concerned that the cap may lead to significant disparity between claimants who are members of benefit plans which provide them with long-term disability coverage, versus those claimants who are not. How fair is it that a claimant who does not enjoy coverage by a benefit plan, say, available through his or her employer may be forced to settle for the cap amount of $5,500 while another claimant with such a benefits plan would receive payments over an extended period of time?

I am suspicious that this bill is intended to lay the groundwork towards raising premiums for bad drivers. That sounds good. Who could disagree with asking bad drivers to pay more so that good drivers can pay less? But what constitutes a bad driver? Surveys show 99 percent of all drivers say that they are good drivers. Obviously, someone with a series of infractions for things such as texting while driving is a bad driver, but what about a single traffic violation? If a driver with a spotless record gets pulled over for a rolling stop, is that a bad driver? If that person suddenly sees their premiums go up, is that fair?

I would assume that, at a minimum, a bad driver would be defined as someone who demonstrates a consistent pattern of unsafe behaviour or breaking the law. That is not clear here. Does a single instance of merging without signalling make someone a bad driver? What about one rolling stop at a stop sign or an improper lane change on an empty road or driving 90 kilometres per hour when the posted limit is 80 kilometres an hour?

[3:50 p.m.]

I would suggest that the overwhelming majority of British Columbians, including the members of this House, have been guilty of one of these infractions at least once. I would also suggest that that does not necessarily mean that they are bad drivers. If that is the intention here, let’s have those discussions — the earlier, the better.

Overall, this bill seems to fit a pattern that is emerging. It turns over a lot of control to cabinet through regulation. Why? There is obviously a great deal of public interest in public automobile insurance rates and injury compensation. Why not have the opportunity to debate future changes here in the Legislature? In fact, when government members were on this side of the House, they frequently and passionately argued against government by regulation, by cabinet order. Why has their tune changed?

Finally, I have questions about the projected savings. The NDP government claims this bill will result in $1 billion in savings. After what happened in the Ministry of Finance and the so-called speculation tax, where revenue estimates remained the same even after the tax changed, it’s only fair to ask about the financial modelling. And $1 billion is a significant amount of money. This bill does not make it clear how those savings will be achieved. I believe the government should show us its math. I look forward to exploring these issues, and others, in more detail with the minister in committee.

A. Weaver: I rise to take my place in the debates at second reading for Bill 20, the Insurance (Vehicle) Amendment Act. I thank the member for Richmond-Steveston for his comments and the minister for introducing this bill.

Bill 20 is one of two bills, hon. Speaker, as you know. We’ve been debating Bill 22, the Civil Resolution Tribunal Amendment Act. Collectively, these bills are designed to get a handle on price increases that are going forward in ICBC. You know, British Columbia is the last jurisdiction in Canada for which victims can sue for any type of injury for any amount. This is known as the full tort system. These measures are attempts to get a handle on costs.

After quite a number of years, in the words of the Attorney General — in a press scrum, he noted that ICBC finances became a dumpster fire. I think, actually, that’s a quite appropriate comment in light of the rather dramatic rate increases and budget overruns that are seen in ICBC due to financial negligence of its oversight through too many years of a government that seemed to view it as a bank account from which to withdraw money rather than as an insurance agency and public good designed specifically to actually ensure value for British Columbians and safety for British Columbians on the road.

This bill provides for regulation on a few major aspects of ICBC — product reform including limiting payouts for pain and suffering and for minor injuries — and allowing for increased medical benefits to be established in regulation. These announcements that are put forward in this bill were actually pre-announced in February.

For me, the important aspect of this bill is that it takes the onus off the legal system and puts the onus on getting a person healthy by increasing the availability of resources for them, whether they be expanded service…. The treatment, the whole focus, now is on the person. That, to me, is important.

We all know of litigative examples that one could describe as somewhat dodgy. There seems to have been an increased, growing number of these, whereby people go to courts and sue for every this, that and the other. Now, with this being put in place, it’s actually saying: “You know what? We’re joining the rest of Canada.”

We no longer are going to be considered the Wild West here, in terms of insurance premiums. We’re going to follow the lead of every other jurisdiction in Canada and move away from the full tort system to one that actually recognizes that costs in ICBC are going up. A substantial amount of those is associated with soft tissue injuries, and we will actually take steps to limit that.

[3:55 p.m.]

There are a number of key changes in this bill. The most important one, as I outlined, is the focus on people and on getting better, rather than litigation. That, to me, is a critical reason why I support this.

Before I go on to the changes in the bill, I’d like to summarize, again, some quick facts from ICBC to underscore just how serious the situation is in ICBC, which is ultimately reflected in the ever-increasing — despite having no accidents — premiums that we are paying in this province.

Government had to do something. ICBC claims totalled $2.7 billion in 2016, which was an 80 percent increase in seven years — seven years where the B.C. Liberals, historically, just watched and let this get out of hand.

The average claim paid out for minor injuries rose from $8,200 in the year 2000 to $30,038 in 2016 — a 265 percent increase in average claim payout for minor injuries. Again, under the watch of the B.C. Liberals, who let this get out of hand and viewed ICBC as a bank account from which to withdraw money as dividends that should not have been withdrawn, because that money didn’t exist.

Over this time, if I go back to the average pain-and-suffering award paid out for minor injuries…. In 2000, it was $5,004. In 2016, it was $16,499. Vehicle damage costs have increased 30 percent in just two years to a total of $1.5 billion in 2016 alone.

Now, I don’t want correlation to imply causation, but of course, one has to wonder what the effects of eliminating those ICBC inspection stations and adjustors from actually assessing claims…. What has been the net cost to the ICBC ratepayer, again, as a direct cause of measures that were taken by the previous government a number of years back?

To the specific aspects of this bill. Some of the key changes are that provisions are now being introduced through regulation to allow the claimant to recover damages for pain and suffering from minor injuries. There’s now a legal definition of minor injury, which is included in this.

Of course, I have some sympathy for the comments from the member for Richmond-Steveston and the member for Vancouver-Langara in other debates that he’s done here — that a lot of this is left to regulation.

Again, there is some definition. There’s some language with respect to minor injury and listing abrasions, contusions, lacerations, sprain and strains, pain syndrome, psychological and psychiatric conditions, or the old “injury as prescribed” in a prescribed class of injury, where that means whatever a regulation says, even if it’s chronic.

I also have some sympathy for the counter-argument raised by the Attorney General, who has suggested that in jurisdictions that have introduced legislation with respect to minor injuries, there are some very sharp lawyers out there who find exemptions to that. So rather than set it all in stone, the enabling legislation enables, through order-in-council, the government to fix any loopholes that may arise in terms of people trying to claim something’s not a minor injury when, in fact, the intent of this legislation would be that it were to be included. Again, I have some sympathy there.

One of the things that’s important is the allowance for an extended list of health care providers to allow ICBC to use for accident claims, which is actually important. You know, despite what the member for Richmond-Steveston said, there are a lot of people who aren’t covered, and it’s not easy to actually get coverage at all times with ICBC. There are limits.

The focus now is not on recovery. The focus now is on trying to avoid the courts, and that’s a problem. That’s a problem when ICBC is more concerned about avoidance of courts and settling and litigation. In certain cases, they are more concerned about the settlement than actually getting someone better.

I do have sympathy for the Attorney General in bringing this forward, this legislation, and support his efforts in this regard.

There are a number of questions. I mean, there are some mechanisms that are in this bill that allow ICBC to no longer reimburse other insurance companies, with the exception, of course, of WorkSafe B.C. and the MSP, for payments to their customers.

Of course, we know that today’s customers can receive benefits from other insurance companies, not just and not only ICBC, if they happen to have secondary coverage through work or others. They can get that after a crash. They may receive wage-loss benefits, for example, or extended health care benefits from their employer.

[4:00 p.m.]

We know right now that most insurance companies indeed have agreements in place where the customer has to pay back these benefits if ICBC also pays for these expenses. With the changes in the legislation, ICBC will not pay the other insurance company for the same benefit they have already provided. That seems to me fair if you’ve got the additional coverage. We’re saying if you’ve got the coverage, ICBC isn’t going to pay the insurance company. They’re going to let the insurance company pay that additional amount. They’ll still, of course, cover you if you’re not covered.

Of course, there are, too, some overarching issues here. A lot of it is left to regulation. But overall, the public response, with the notable exception of trial lawyers, is quite positive. I’ll start with the negative, of course.

We know that John Rice, from the Trial Lawyers Association of British Columbia, has suggested that the changes since February are concerning because they have widened what is considered a minor injury and, therefore, subject to the cap. He says that “the legislation represents one of the most significant attacks on the legal rights of British Columbians in our province’s history. The proposed legislation goes much further than what was previously announced by Eby in February in making victims pay for reckless and distracted drivers. Instead, ICBC and the NDP….”

Deputy Speaker: Member, only referencing by riding name.

A. Weaver: Oh, I do apologize. I was reading a direct quote from the letter. Thank you for noting that. It was announced by the Attorney General, who he referred to by name, which of course, is not appropriate for me to do in this Legislature.

He said: “…by the Attorney General in February in making victims pay for reckless and distracted drivers. Instead, ICBC and the NDP government want to cap even more injuries than British Columbians suffer because of someone else’s negligence.”

Now, my retort to John Rice, of course, would be that now British Columbia is the only jurisdiction in Canada — the only one left — that is the Wild West of thou shalt sue whoever thou wants whenever there’s an accident, to see how much money you can get. I understand that there are certain trial lawyers who will be upset because they have made a livelihood out of this so-called issue.

I also have some sympathy with respect to government trying to deal with this, because costs are getting out of hand. We know that those costs are coming for settlements on soft tissue, for example. And there are other costs associated with increased motor vehicle claims. But again, to members here, it seems to me that we are the last jurisdiction for allowing this full tort system. It’s not unexpected. Nor is it really, frankly, outrageous. Nor is it, actually, uncommon for one to expect that it’s time for us to get with the program. I commend the Attorney General for actually stepping up and doing this.

There are, of course, many other comments that are on the positive side. I received many emails in this regard. A couple of key ones, of course, are…. Giovanna Boniface, from the Canadian Association of Occupational Therapists, says:

“Unbelievably, accident benefits haven’t been increased since 1991. B.C.’s occupational therapists have been helping injured drivers return to activities of daily living for decades and have seen declines in access to vital and necessary treatment for years. By raising the amount covered and expanding the variety of treatments that are eligible, these changes will allow more people to have access to the treatment and adaptive equipment they need, thereby fostering quicker recovery and return to meaningful, daily activities. “

This is important because I know, only too well, the problems that have arisen with people trying to get benefits from ICBC. You’re allowed to make two claims. In the first claim, they’ll pay your expenses, but they won’t pay your other medical expenses until the second one, which is when all is better. The problem there is that ICBC is incentivizing you to go to a lawyer.

If you have a difficult time paying those expenses…. I know people very close to me who have had to pay thousands of dollars in expenses. They’re not going to see lawyers, because they want to actually get better. But they have to pay it up front. They can pay it up front.

What about the person that can’t pay it up front, the person who doesn’t have the hundreds and hundreds of dollars to spend on ongoing physiotherapy? They make their claim after a couple of months and realize that they need many months more of physiotherapy and, say, chiropractor and massage therapy. They have to pay it and hope that, perhaps, they’ll get reimbursed at the end. Sometimes they can’t. They go to a lawyer, and the lawyer’s office says: “You know what? Get yourself better. We’ll cover the expenses. We’ll open a file.”

[4:05 p.m.]

As soon as the lawyer opens the file, guess what. We know the settlement is going through the roof.

Here, what is so welcome to me in this bill is that the focus is on the patient and getting the patient better. That is the number one focus. For many, having the ability to get better is what they want. So again, I applaud government for bringing this forward.

Another commentator is, of course, Jane Dyson, from Disability Alliance B.C. Jane says:

“Disability Alliance B.C. has been advocating for improvements to accident benefits for 12 years.”

Funny, that — 12 years. That’s less than 16 years.

“The doubling of the overall allowance for medical care and recovery is a significant improvement. We welcome these long-overdue changes that will mean that people who are catastrophically injured in motor vehicle accidents have better supports available to them to help them rebuild their lives. Moving forward, DABC” — that’s the Disability Alliance B.C. — “looks forward to continued dialogue with ICBC and government to help ensure that British Columbians accessing accident benefits receive the treatment and financial support they need.”

Then, of course, there’s Louise Craig, who’s a Vancouver-based physiotherapist. She’s also a spokesperson for the group Rights Over Arbitrary Decisions — ROAD, an interesting acronym — for British Columbians. She said this: “It’s good that government keeps talking about increasing medical benefits for those involved in a crash, but the loose definition of minor injury in Monday’s bill remains concerning. I think they are expanding it so that minor injuries encompass the vast majority of injuries that occur and make the exception, say, a fractured bone or spinal cord injury.”

I think this is the concern raised by a number in this House over the previous bills we’ve discussed as well. Again, I accept, at this stage, the argument put forward by the Attorney General that, in fact, the definition is meant to be a little loose in that one is hoping to refine it through regulation as time moves on to ensure that minor injuries are actually captured as minor injuries and not to ensure that, in fact, there are loopholes that people can actually get away with and kind of avoid the tribunal process, for example, or the maximum coverage.

Again, long overdue for reform with ICBC. I’m very pleased that government is stepping in to douse this so-called dumpster fire with some water to ensure that ratepayers are protected, because something had to be done. We could have done a couple of things. We could have scrapped ICBC, thrown the baby out with the bathwater, and gone with a full private insurance system, as some jurisdictions have done. We could have gone to a complete no-fault insurance system, as other jurisdictions have done.

I think what government has done here is stand back and say: “You know what? We don’t want to throw the baby out with the bathwater. We want to ensure that we keep this jewel, this jewel called ICBC.” But we also want to ensure that we reform it, reform it in a way and a means that actually ensures that ratepayers are getting value for their investment in the ICBC auto insurance plan and to ensure that we clamp down on false claims or those who are, in some sense, using the system for their financial advantage through claiming of injuries that are not actually as serious as would otherwise claim.

I’m a very strong supporter of this bill, and I thank the minister for bringing it forward — recognizing, of course, that it won’t be without some concern and controversy elsewhere. I thank you for your attention, hon. Speaker.

R. Coleman: I’m pleased to enter into the discussion with regards to this bill today. My comments will stray back and forth from Bill 22, relative to the administrative tribunal, as to how it affects this piece of legislation back and forth.

As I read this bill, I think the first thing we should recognize is that this is no-fault light, relative to the insurance business and how things are going to be changing and different. I know that we go on about the issues in and around the deficit at ICBC. I will say on the record that if you took the actuarials at the middle range versus the high range, you would all of a sudden have half of ICBC’s on-paper liabilities saved. However you do your actuarials over two years is one of the biggest challenges for forecasting of that Crown corporation.

[4:10 p.m.]

People will have many issues and discussions about this. I want to go through a number of things at the front end of the bill but also, as I go through it, to ask some questions about how this will work and whether we’re giving the power to enter into the adjuster business, to be able to adjust and decide all future claims in British Columbia’s adjustment, to executive council, being cabinet — to decide what level of injury is admissible, what type of treatment is going to be admissible, to actually try and make sure that the numbers work, versus work for the people who might be injured in an accident.

I raise that concern for a number of reasons. First of all, I have been injured three times in car accidents. I can tell you right now that some of the stuff that comes from a serious car accident doesn’t necessarily show up in the first 90 days. Sometimes it takes longer. And I can tell you, sometimes you are left with a lifetime of things like massage therapy, physiotherapy, chiropractic and other things. I don’t know how you will ever square that circle, because when a settlement is done, a settlement is done.

I have a friend who had a car accident a number of years ago. This individual was injured, went through the process with finally getting into a settlement about a year after the accident. Wasn’t sure whether to take the settlement or not. Had not consulted legal counsel but decided the settlement was fair from a financial perspective, only to find out about 60 days later that one of the things that wasn’t diagnosed as a result of that accident was a small crack in a vertebrae in the person’s neck. That person has been going for treatment and dealt with pain now for an additional ten years, with no support whatsoever.

The first thing I have concern about, as we go through this discussion and we go into this, is the inability of people who may have a minor injury, as this act calls it, and then actually go and deal with the injury but have no support to understand what they’re getting into. There are people who drive cars in our province that have issues with language and literacy, who deserve to have the ability to have it explained to them what it is they’re getting into if they sign off on a settlement for a certain monetary value.

I think that’s important to understand as we go forward, because those folks could be very much disenfranchised. As we deal with this, as we come into the package, I’m going to go through the regulation’s power-making portion of the bill for executive council, but I just want to stop for a second and remember what the administrative tribunal that we set up was supposed to accomplish.

It was supposed to take things out of the courts and put them into a place where people, in an understandable way, could actually settle their differences without having the courts. When I talk about differences right now, it’s strata property owners. It’ll probably eventually be people like residential tenancy. We’ll have that, rather than an alternative to the courts.

The tribunal as it exists today, as I understood it when we did the legislation, had jurisdiction to be able to take settlements in those discussions up to about $35,000, which is the cap for small claims court. This takes it up to $50,000 of awards through this administrative tribunal. They have the exclusive jurisdiction on minor injuries.

But the definition of a minor injury is somewhat troubling. I just listened to the minister speak and say that minor injuries could become major injuries if the chronic pain or the pain from that injury continued after 12 months. But the format of this thing is set up so that these things are going to be settled in 90 days. So at 90 days, you’re done. And now you have chronic pain for the next five years. Is the system going to ignore you? A fair question and one that needs to be, quite frankly, canvassed as we go through this bill.

As we look at this thing, we have to think about what it is we have in front of us. We have the ability now to evidently define a minor injury and cap the claim of a person that has a minor injury up to $5,500. That’s the intent — without any legal support, with the ability for the tribunal to decide which medical experts they would listen to, rather than the medical person that may be treating the person that was injured in the accident to be begin with.

[4:15 p.m.]

It means that people could be ignored to what the real, true pain is from what they’ve had in an accident. Now, on the flip side, everybody goes to the argument that there are lots of people that are doing false claims, people who are defrauding the system because they make up their injuries, because soft tissue injuries, in particular, are tough to diagnose and quantify — and always jump to that.

People should know that for years, including the last few years, the increased focus on fraud at ICBC has been saving it a lot of money. But it hasn’t actually…. It’s not the dollar amount that would actually change the outcomes for the company.

I want to just talk about the government getting into the business of being adjusters. I want to just do the first line under the act that we have before us, section 104. It has some very interesting language: “Without limiting any power of the Lieutenant Governor in Council to make regulations under any other Part of this Act, the Lieutenant Governor in Council may make regulations under this Part as follows.”

Basically, it’s a blank cheque for the executive council of the government of British Columbia to make decisions.

The first section deals with “respecting the examination and assessment of injuries, the determination of whether an injury is a minor injury and the onus of proof on such a determination.” All of a sudden, the executive council of B.C. can decide what the determination is on a minor injury and who has the onus of proof.

First of all, let’s start out with the presumption that this is an ICBC client. They have bought an insurance policy that is to insure them for specific uses, damages, comprehensive — whatever it is on their vehicle. Are we going to continually adjust the language in the contracts, relative to my insurance, when I buy it on an annual basis? Will somebody actually disclose to every single client in whatever language they have that certain things are no longer covered, that the insurance they’re buying doesn’t cover what they think it does, particularly with relative things like examinations for injuries?

Is executive council going to actually say…? “Well, we’ll use these doctors. This will be the only approving person for an examination of an injury. And oh, by the way, your doctor doesn’t matter. Your specialist doesn’t matter. We’re going to take the opinion here, and we’re going to make our adjustment according to that.”

The next section then leads you into even more troubling language and concern. It says: “respecting the examination, assessment, diagnosis and treatment of minor injuries, including, without limitation, (i) establishing or adopting procedures, guidelines, criteria, requirements or standards to be followed or met, as applicable, by claimants, insurers and prescribed health care practitioners.”

Think about that for a second: establishing or adopting procedures, guidelines. They’re actually going to be giving guidelines, as to how you should assess a claim, from the executive council to a policy that is given out by an insurance company to somebody who bought the policy. And you have the ability to amend that at any time.

You can also deal with the guidelines, the criteria, the requirements or standards to be followed or met. But strikingly: also by “claimants, insurers and prescribed health care practitioners.” Presumably, that means cabinet will decide who is a prescribed health care practitioner in this province, relative to an injury from a car accident.

When the Attorney General was speaking a few minutes ago, he mentioned that there would be people who had expertise in accident investigations over at the administrative tribunal. Where are you going to find them? Are they going to have the arbitrary ability, because of their experience, to decide what actually happened in an accident scene or damage of an accident they never attended or investigated?

The next piece is: “establishing time limits for the purposes of obtaining an examination, assessment, diagnosis or treatment.” On one side, we say to this tribunal: “You’re going to get these done in 90 days. Executive council can tell you that you have time limits for the purpose of obtaining an examination, assessment, diagnosis or treatment.”

Let’s assume there are a number of practitioners out there that are now designated by executive council, through executive order, through the administrative tribunal. We now establish time limits for purposes of obtaining an examination, assessment, diagnosis or treatment.

[4:20 p.m.]

Let’s assume we have somebody that has been in an accident, and they have a sore shoulder and a bad neck. The diagnostic treatment needs to determine what we have. So it may require certain types of procedures. It could require X-rays. It could require testing on range of motion, how your neck moves, how you go back and forth, where the areas of pain are, how we can deal with that pain. It may also require that there be an MRI in situations where somebody’s been through it.

As we know, you have to get in to get an MRI or a diagnosis or diagnostic or treatment determined. You have 90 days to diagnose and set out an area of treatment, which will then go to the opinion of professionals. That would be determined by the tribunal, without necessarily requiring the input of the doctor and specialist that may be treating you.

This one concerns me on a number of levels. I’ve had a few accidents — not my fault. But I’ve been in a few accidents. I was once in an accident as a passenger. As a passenger of a vehicle, after the banging and bruising and all of that started to heal, I noticed about six months later that even though my neck was better, my right shoulder was hurting. It was only when there was finally an MRI done that it was determined that I’d torn my rotator cuff in the accident.

Now, under these rules, I would be not eligible to go back and say, “This was a serious injury,” because in 90 days, somebody had already made the determination on my treatment and what have you, and down the road, that would be the case.

Now, I can tell you, even through private MRIs, looking at the capacity in British Columbia to get a private MRI, once you’ve gone through a doctor, a specialist and all of those people to get to that point, if you can get in and get that diagnosed in 90 days, you’re doing well. But then there is no course of treatment at that point in time. There is nothing to take to a tribunal to have a conversation about, and you have the executive council determining that that’s the time frame you have to live within.

The Attorney, to his credit, said: “Well, if it’s still there after a year, we’ll call it not a minor injury anymore.” So we’re determining, at one point, that within a year everything should be healed, and we’ll just leave it as a minor injury. We’re determining that, because we’re trying to decide that we’re going to be the adjusters, relative to injuries in car accidents, and at the same time, the actuaries, which is troubling.

It’s not that people don’t support trying to get the costs into line. I know we talked about…. In this discussion, people talk about $5,500. I’m talking about human beings — people who may be injured, who need to be taken into consideration — people who may not have the support to be able to even understand what the tribunal is asking it to do or what process they have to go through, who may not have access to certain things like high-speed Internet or have access to doctors that they could get in to quickly, if they live in rural British Columbia. Any of those things seem not to be even considered in this bill.

The government, through executive council, can also prescribe circumstances in which a prescribed diagnosis and treatment protocol applies, providing when a protocol no longer applies. So the executive council is saying: “Oh, we have too many people with soft tissue injuries continuing their claims long term, after a year. So let’s prescribe that the protocol that we’ve established no longer applies, and stop it all at 12 months.” That’s the power, on future insurance claims, they’re giving through this bill.

Governing the rules in relation to a protocol of claimants, insurers and prescribed health care practitioners and imposing limits on those roles are also in this bill. When are we going to….? I mean, going back and forth to a citizens’ tribunal, this act gets to be pretty complicated and will require a whole different set of expertise and people to sit on the board of their tribunal. I don’t know if I would like the fact that the government, through executive council, can prescribe health care practitioners and then impose limits on their roles.

[4:25 p.m.]

Are you telling me that the limit on a role of somebody who diagnoses that I have a torn rotator cuff stops at that fact? You’re not prepared to actually let it go to the next MRI to determine whether surgery is necessary, because you’ve prescribed that’s the only thing they can do up to? That’s the role where they stop? These are the types of questions that people in British Columbia are going to ask about this bill and, also, in the case of rising claims and what have you and how we can actually bring this, fairly, into line for people of British Columbia to be treated properly.

There are a couple of sections that I might gloss over. Respecting treatment for minor injury and respecting the number and types of treatments for minor injury, including prescribing different numbers and types of treatments for different circumstances, somebody’s going to sit somewhere and write down a regulation and say: “For this particular injury, we’re going to prescribe these treatments.”

I know, because I’ve seen it with people who have been injured in accidents — friends of mine and family — that sometimes, some people do really well with chiropractic. Sometimes people do way better with registered massage therapy, and some people with physiotherapy. Some people may actually need a rehabilitative plan, including exercise, weights and what have you to strengthen different portions of their body — to compensate and take the pain away by rebuilding portions of their body that way, through people who are capable of teaching them that.

In this case, the cabinet will actually be able to impose limits on those people’s roles. Are you going to go and decide you’re going to save money by how much you’re going to pay for a physiotherapist? Are you going to decide that physiotherapist X or Y or Z are the only ones that would be allowed to treat somebody and physiotherapist A or B won’t be allowed to treat somebody?

These are important questions as we go through this bill in committee, because those things are going to be very tough for people in our communities who have limited transportation and limited access to medical care in rural B.C., people who have to go through a tribunal process with no support or any legal support or advocate. They may have a language issue even to be having the ability to understand what’s going on in front of them. They may be sent documentation that they have to fill out relative to their injuries and to get doctors to respond to them — and be having trouble reading the documents because of a literacy issue.

The other question is: who pays for these reports where you’re going to ask the administrative tribunal to determine whether or not I have an injury that needs longer term than just the payment of $1? Are you going to use the report that’s given to you? Or will you arbitrarily — as this will allow you to do — just pick another doctor who can just look at the documentation and, at that point in time, decide?

I’ve had the experience on the other side with one of my employees, who legitimately had a disability and, when they applied for long-term disability, was turned down. Now, when this happens, it’s a lot of work. But at the end of the day, a three-doctor panel went back and reviewed the file and granted the disability after a year of that person just trying to get what was due to them because of the illness that they had.

Then we have that the cabinet can now decide who to refer to “in a prescribed class of persons, for the purpose of obtaining an opinion about….” A “prescribed class” — not my doctor maybe, but a doctor that’s a tribunal doctor — can do the examination, assessment or diagnosis of an injury, and can give an opinion, a treatment plan for a minor injury, even though it may be different than the doctor who’s actually treating me. The condition of a claimant…. They can actually, by paper, because they won’t be seeing these people, decide what the condition of the claimant is and make a judgment on the human factor of an injury that’s come along.

It also says: “(g) for the purposes of paragraph (f), (i) prescribing a class of persons, (ii) requiring the establishment of a register of persons in the class….” I’m assuming that we will make a list of qualified physiotherapists, chiropractors, massage therapists and doctors that are acceptable who would do this. There may be doctors out there who would see this client at the very beginning and who don’t want to be in this class. So they could actually opt out and say: “No, I am not wanting to be on your list, simply because what you’re requiring me to do is just not the right thing for time and success for my client.”

[4:30 p.m.]

Then we get to the qualifications for the persons, the treatment plans for the persons in this class — so actually prescribing, somewhere in regulation, how we’re going to decide what we look for in order to approve a treatment plan of somebody who is injured in an accident. None of this is still about whether you’re going to pay a set amount.

What about the person who now has to go through this process in 90 days and finds out that they have to actually prove their injury goes on for another nine months before you’ll determine whether they would be able to be supported longer term? Then they get to set the “procedures and conditions for the making of claims to, and the refusal and payment of claims,” with no appeal, it appears. That includes the insurers, but it also includes other “establishing circumstances in which claims are deemed to have been approved.”

The “deemed to have been approved” piece of that sentence is concerning. The tribunal could say, “This is your settlement; this is your plan,” versus a doctor saying: “Well, that won’t work for you long term.” But it doesn’t matter, because the tribunal actually has the ability to deem that that is what you get, and that’s your treatment.

The question that will be coming to committee will be: how are you going to determine that? How are you going to determine the ability of someone in Chetwynd to get to a specialist in time to meet your 90-day level? How are you going to determine the ability of people to be flexible and to come up and deal with your tribunal when they happen to be a single mother with two children in school and they’re also working? Now we want them to also come along and defend themselves when they’ve been injured in an accident, without any supports from anybody, in that circumstance.

As we go through this whole thing…. It is disturbing that we have these things and this particular ability of the government to actually dictate the settlements for claims by an insurance company. One of those that’s in here that is going to require some conversation is…. They’re actually going to be able to set out criteria for the purposes of the definition of “permanent serious disfigurement.” The executive council is going to prescribe that in regulation. I think somebody that’s severely injured probably knows, to them, what that means. But to have somebody at arm’s length, through cabinet, determining what that definition should be is ridiculous.

[R. Chouhan in the chair.]

Also, the time: “…criteria and prescribing a period for the purposes of the definition of ‘serious impairment’.” We’re going to decide — up to $50,000 and these other things, by using these doctors that may not be my doctor — whether I have a serious impairment from an accident, at arm’s length, through a tribunal. I’m not even allowed to bring anybody at anybody’s cost — a doctor who might want to refute that or legal counsel or somebody, even, that would be an advocate and that would help me with the language issues — as I go through these changes.

Now, they also, actually, get to prescribe a “class of injuries, or a claimant or a claimant in a prescribed class of claimants,” that will be exempt from the application of the section. They’re going to make a list of people that are exempt. I suppose there may be some that would come…. The Attorney General talked about people who might break a bone or something more serious or whatever. It is important that we understand how they will go about defining it.

For the purpose of the next section, “respecting damages for non-pecuniary loss for a minor injury, including, without limitation, establishing (i) an amount of damages or a limit on damages for a minor injury arising from an accident” that the person was into…. Now, that I get. That’s your $5,500 piece.

Then it goes on and says: “…an accident in which a claimant suffers (A) a minor injury and an injury that is not minor.” I read that, and I thought: “Well, there have got to be some questions in committee on that one.” It’s either or a minor injury or an injury that is minor. It’s not a minor injury and an injury that is not minor.

[4:35 p.m.]

“Rates, formulas, rules or principles, including…a consumer price index published by Statistics Canada…for calculating or determining an amount of damages or a limit on damages.” Remember that this tribunal, which isn’t today legally authorized to do $50,000 settlements, has a limit of $50,000 but will not cover any of the costs of somebody who may have literacy or legal issues and wants to have their doctor come in any way whatsoever.

That’s kind of like wrapping up people’s lives in one section of an act to say that a group of people sitting in the west wing, in cabinet, will approve a bunch of regulations that are going to affect the lives of thousands of British Columbians without understanding the consequences, necessarily, of the approval of what those are. That’s probably what disturbs me most about the legislation.

I know that there’s been an argument going on since the 1990s, when I was here in opposition and the now government was in government. They brought in no-fault insurance for a short period of time. They tried to do it, the outcry from people was there, and they backed off.

I think that as you’re trying to do this, you’ve got to step back and remember humanity, people, families — a person who has chronic pain because of an accident and nerve damage that isn’t necessarily easily seen in the first six months to a year, who is up in the night and still trying to deal with the issues of their children getting to school during the day, or trying to maintain a job and a relationship with a spouse and family while they’re in pain, a lot of pain.

We are deciding whether they’re actually minor injured or not, and we’re doing it how? By determining who will decide what that is. On an administrative basis, we’ll make that decision of what’s a minor injury. After a year, you’re cooked, according to this legislation. When we’re doing that, we’ll prescribe who the practitioners are and what time frame you have to get to the tribunal.

The tribunal is 90 days, according to all the press releases. We’re going to get through these claims in 90 days when they might need an MRI? They might need different work with regards to how you can do a scope on certain things that may have other health issues that are impacted by the accident in itself, that change the outcomes on other parts of their metabolism and their health. It’s totally unfair to think that you can turn your back on humanity just by saying: “We’re going to take this over, and we’re going to say, ‘Boom, this is it.’”

The questions for the government as we come through this are going to be: who are your prescribed professionals? Can I get an MRI and all of the bloodwork and all of the things relative to my injury and the analysis and maybe a little bit of physiotherapy within the 90 days that you tell me you’re going to make a decision on my claim? Then, nine months from now, if my pain continues, I can come back and say that my pain continues. You’ll re-victimize me through a whole other process to determine whether you’re going to go longer term on things like physiotherapists and assist with those types of things that will have an effect on me as a human being for perhaps rest of my life.

It’s not black and white here. We’re trying to help solve an issue. We should do it with the true actuarial forecast for ICBC at the high, medium and low levels relative to how they’re forecasting, relative to their long-term deficits. We should do it in light of what this means relative to, obviously, the financial aspects but also to the aspects of how it affects a human being.

L. Throness: I’ve been listening to the wisdom of the member before me. I think he has a lot to say, and the House ought to be listening to what he has to say.

Now, I’m not going to address clause-by-clause in the bill as he is able to do. He has a lot more experience and expertise. But first of all, I want to set the stage for what I want to say and talk about ICBC’s history and the independent report that was commissioned by our government in December of 2016.

It reported just a year ago, on July 10, and it was entitled ICBC: Affordable and Effective Auto Insurance — A New Road Forward for British Columbia. The first thing that stood out to me from that report, as I looked through it, is that it relates the fact that ICBC has the second-highest insurance premiums in Canada.

[4:40 p.m.]

This was brought home to me when I moved back from Ontario in 2011. I had been in Ontario for a long time. I had a car out there, of course. I had a 2004 model car. I was paying about $800 a year in insurance. I drove it back out here and put extra miles on it. It was older, and it was immediately double the insurance costs. Well, that was a shock. I couldn’t understand that, and I can’t understand it now.

Right now I drive an eight-year-old SUV. I’ve owned it for nearly five years. Its value is declining about $3,000 a year. I put 45,000 kilometres on it a year. I have no accidents or any claims, yet my premiums go up every year even while my vehicle declines in value. So my insurance costs, measured as a percentage of the value of my vehicle, are escalating hugely every year. I’m now paying about a third of the value of my vehicle in insurance premiums, and next year it’ll be even more.

Is it possible that one day, I’ll be paying more insurance premiums than my vehicle is worth? Well, I think it is. So there’s some kind of a big problem with ICBC. I don’t really understand what the problem is. I’m just a layman. But I’m one with my constituents in being really frustrated. And now it appears that — well, it doesn’t just appear — ICBC is in real financial trouble, even though everybody’s paying more in premiums.

I want to point out that for 13 years, since 2001, when the B.C. Liberals took over from the NDP’s dismal decade, ICBC turned a profit. It was actually doing all right. But particularly around the year 2013, something happened — something bad happened. This is the first thing addressed by the independent report.

There was a growing number of accidents that ICBC had to deal with, and in 2013, things started to go the wrong way. In 2013, ICBC data showed that approximately 20,000 additional crashes per year had been taking place in B.C. Now, you could chalk that up, in part, to more overcrowded roads. I think of the Massey Tunnel replacement, which is so necessary, and of course, I think of Highway 1. I think there are a couple of accidents on that road every day and sometimes major ones and multi-car ones. The government needs to widen the highway so that each car has a little bit more space on the road. That would help. I think congestion is making more accidents.

We have to add to that vehicle repair costs, which have also increased disproportionately by more than 30 percent within two years, from ’14 to ’16, to a total of $1.5 billion in 2016. So these are really huge increases in accidents and repair costs.

Then we have to combine those costs with the costs of injury claims. We would expect more claims following more crashes. Of course, if there are 20,000 more crashes, we could expect a certain proportion of more injury claims. But there are proportionately more claims of injury than crashes being filed.

These are driven by minor claims, not major ones. The average settlement, according to the independent report, in the year 2000 was just over $8,000, but in 2016, it was $30,000. For non-minor injuries, the average claim payout has risen roughly in line with inflation during that same time period. So the huge rise in claims refers to minor injury claims.

In fact, in 2016, minor injury claims cost ICBC almost $1 billion, while catastrophic injuries cost just over $700 million.

All this means that the average ICBC premium has gone up to $1,550 every year, which is about the size of premium I pay. It could rise to $2,000 per premium, on average, by 2019.

This is the context of the bill before us, Bill 20. It’s not mismanagement of the government. In fact, there’s a long list of actions that we, when we were government, took to try and mitigate these pressures, like increased penalties for distracted and impaired driving, measures to combat fraud, road safety programs. We reduced salaries for senior executives. We reduced the number of managers. We increased luxury car premiums.

There’s a long list of actions that we took. Finally, in 2016, the government stopped taking dividends from ICBC, which we were using to pay for good programs like health care and education and other programs. We began to leave that money in the corporation.

I would remind the House that that’s why we have these large Crown corporations. It’s to return profits to the taxpayer instead of profits going into the hands of private owners. I’ve argued that to my constituents. When the corporation goes into a downturn, we stop taking funds from Crown corporations. So when it became apparent that there was a downward trend in the corporation’s bottom line that wasn’t turning around, we stopped asking for money from ICBC.

If we had not done that, we would have had to increase taxes. It was one or the other. I’m sure the opposition at that time, the NDP, would not have been happy with us increasing taxes either. Of course, they only wanted to do that themselves when they came in.

[4:45 p.m.]

It’s not mismanagement. It’s the shock of the external factors that have hit ICBC like a big storm over the past few years. The independent report provides three solution areas that dwell on the following topics.

First, the need to increase road safety and change high-risk driver behaviours. Obviously, we need to reduce the number of accidents on the road. This means reducing speeding, reducing impaired driving, reducing distracted driving. It means undertaking major projects like the No. 1 Highway widening and like changing the Massey Tunnel problem. We do this through more education, more enforcement, increased driver penalties, better roads. I don’t think we have a lot of choice but to do these kinds of things.

Second, we have a redesign of the current insurance product, which the government is trying to do in Bill 20. This is where the bulk of savings can come from. We need to alter claimant behaviour. We need to reward safer driving. We need to increase fairness and keep costs and premiums under control.

Third, a number of smaller interim measures, like process and productivity improvements that could save money in the short term. They actually aren’t so small, but they could save us money in the interim.

We want to be part of the solution, here on this side. We realize that things have to be done, that changes have to be made. Should we have been granted the opportunity to form government again, we certainly would have taken steps to control costs further at ICBC, but we would not have done the same thing as the NDP is doing in this bill.

On this bill before us…. I’m focusing on part 7 of the bill, entitled “Minor Injuries.” One of the options in the independent report was to place a cap on minor injuries for pain and suffering. There’s an entire range of other options that the NDP could have taken to fix ICBC’s problem, but the NDP has decided to limit the awards for pain and suffering for minor injuries to $5,500 — even though the costs of those types of claims were $30,000 in 2016. The government is cutting awards for pain and suffering from $30,000, on average, to $5,500. That’s a draconian measure.

More than that, the NDP have decided to place this amount into regulation so that by the stroke of a pen, the government can reduce that amount without coming to the Legislature. In a very quiet way, in a hidden way, it can change that cap. It can reduce awards for minor injuries, for pain or suffering, even though people might experience continued pain and suffering that may have a big economic impact on their lives — on their jobs, on their earning power, their incomes — that is far higher than the cap.

In this way, the government is effectively changing the insurance policy by a stroke of the cabinet’s pen.

Allow me to explain. If you buy an insurance policy on the contents of your house or your apartment, you have a certain premium to pay for a certain amount of coverage. Each year, when you go to your insurer, you decide on the kind of coverage you want to get for the price you pay. We do exactly the same with ICBC. We specify the coverage that we have in our insurance policies every year when we renew our insurance.

But in this law, the government is going to take it upon themselves to change the coverage of ICBC at any time, by stealth. We may have paid for a certain amount of coverage. Right now it’s unlimited amounts for pain and suffering. The NDP is putting a cap on it of $5,500. That’s a month’s wages for someone making $66,000 per year, which is not a huge wage. Cabinet can now alter those terms at will.

It’s as if, in your house insurance, your insurer would simply decide to increase your deductible by two or three or four or five times. Something is stolen from your house. You go to your insurer, and the insurer says: “Oh, sorry. We increased the deductible, and we won’t be covering you.” You say, “But I paid for that coverage,” and the insurer says: “Well, too bad, so sad. There’s nothing we can do about it.”

What would we call that? We would call it an effective increase in premium, and we’d be very unhappy indeed.

Let me repeat. A reduction in coverage has the same effect as a hidden increase in premium. We won’t be getting what we paid for if the government exercises this new power by regulation, as it has been introduced in this bill.

It’s a matter of balance. When we have public insurance, of course we have a responsibility to strike a balance. We need to look at all the taxpayers who have to insure their vehicles through ICBC. They don’t have a choice, so we need fairness to them in our premiums. We have a responsibility to be frugal, as a Crown corporation, to be efficient, to be well regulated, to take the actions necessary to keep premiums affordable.

[4:50 p.m.]

On the other hand, we also have to look at the victims of accidents on the road who suffer injury. That’s why we have insurance. Insurance is completely about victims. It’s about victims who have accidents on the road, who suffer a loss or who perhaps suffer a loss from their vehicle or who suffer a physical injury. That’s the whole reason for having insurance.

Allow me to quote from an email I received today from a fellow named Steve in Chilliwack. Here’s what he said:

“I’m one of your constituents, and I would like to voice my frustration about the ICBC injury cap. Every injury is different, and soft tissue types of injuries can and do cause some serious, long-term pain and suffering and are usually caused by other drivers during a rear-end accident, at no fault of the driver. I think that this idea is ridiculous and unfair. People who are in car accidents suffer very real injuries, and they deserve to be fairly compensated.”

I’m thinking right now of a relative of mine — my aunt. Several years ago, her car was rear-ended coming from the ferry toward Victoria on the highway. She suffered, for I would say a decade, from tremendous injuries she sustained. She went through tremendous suffering. She struggled for years with ICBC over that, and now it’s going to be much harder to get anything from ICBC. In fact, the cap is going to be 5,500 bucks.

Let me remind the House why we have insurance. The purpose of insurance is to keep people whole when they’re involved in a motor vehicle accident — that is, when we try as best we can to restore people to their former state.

For example, when I have an accident with my car and my car is ruined — it’s a write-off; it’s a wreck — ICBC looks at comparable car prices in the area, asks about how much I paid for the car, how long I owned the car and things like that. It comes up with a valuation for that car. It decides how much that car is worth, and it pays me the value of the car so that I can, theoretically at least, go out and buy another car that’s exactly the same as the car I lost. I’m kept whole. That’s the purpose of insurance, to keep the victim whole.

Imagine, now, if there was a cap on that claim. Say I owned a $30,000 car. I have an accident that destroys that car, and ICBC comes back and says: “Well, the NDP cabinet has placed a cap of $5,500 on that claim. We’re really sorry, but we can only give you $5,500 for that $30,000 car.” So if I had to go out and buy a different car, I could only get one that was a fifth as good as the one I had before. I think there would be an outcry about that. Wouldn’t there? I think there would be.

In the same way, an arbitrary cap on injuries is just as wrong, as a matter of principle. It’s unfair. It hurts British Columbians who’ve been involved in an accident with an injury.

Let me touch on some of the other reasons for unfairness. The $5,500 is an arbitrary, an artificial, limit on minor injury claims. The human body is not like a car body. It’s a very complicated thing. You can’t price out a windshield and replace a windshield on a human body. You can’t put a price on some of these things.

An injury to one’s arm, for example, can have small effects, or it can have far-reaching effects over time. They can be long term. It might be a loss of mobility that will take away my job and require me to move to a different job that pays me less and have a lifetime impact. There might be damage that doesn’t manifest right away, but it could manifest over a longer period of time. It’s hard to estimate what making a person whole means in a medical sense, because of all of the complex factors of the human body that go into that determination.

Well, I wonder how the NDP decided the number of $5,500. It’s a fifth of the current average payout. I think they decided it not considering the insurance principle of medical wholeness for an insured person. They were simply looking at the bottom line. They were looking at the dollars they want to save at ICBC.

The independent report says on page 25 that this move would save $840 million a year when combined with a few other things. It’s a major chunk. It has different scenarios, and this is the second of three scenarios.

In other words, it will take minor injuries from costing nearly a $1 billion a year down to $160 million — to almost nothing in comparison. That’s what this government is going to do to motorists who suffer injuries that may cost them well above $5,500.

[4:55 p.m.]

There’s another way it’s unfair. It’s unfair because an arbitrary decision doesn’t address the complex needs of British Columbians injured in motor vehicle accidents.

Every British Columbian is different. Every accident is different. Every injury is different. It’s a unique thing. A single cap on injuries is, by definition, arbitrary. It’s not tailored to the individual’s circumstances. This violates another principle of insurance, which looks at the unique circumstances of each and every individual situation.

I have a brother-in-law who’s an insurance adjuster. When he hears about an insurance claim, he’ll go out to the house. He’ll look at the flood that happened or the fire that happened or the accident that happened, and he’ll value the damage that was done. He’ll decide on an insurance adjustment based on that value — the value of that unique situation.

It’s further unfair because these benefits will be reduced based on decisions made behind closed doors, as I’ve already alluded to. It won’t be a transparent process. Essential details that determine how much injured people can receive will be defined through regulation, not legislation like we’re talking about today in this House. There won’t be any consultation with the public. There’ll be no need for media releases or any public feedback. It’ll just be done by a stroke of the pen, another aspect of this bill’s unfairness.

Let me talk about something else. This bill will force quick and dirty assessments of injuries, even before a diagnosis is final. Things like nerve injuries, mental health trauma, spinal injuries may not be recognized or diagnosed until weeks or months after the incident. Too bad for a person under the NDP treatment of ICBC. I’ve received representations about this from constituents who have experienced real hardship after accidents that they have suffered. People like this are going to be hurt.

In our health system, cookie-cutter solutions don’t work. If I’m a child or if I’m an adult in the same accident and suffer the same injuries, it will obviously have different impacts. That’s what insurance is about. Forcing British Columbians to accept compensation within a time frame, within a cookie-cutter framework that might not define their injury, is not only unfair; it has dangerous implications for long-term health and the long-term well-being of people who are suffering injuries.

When British Columbians are injured in motor vehicle accidents, they’re entitled to proper and thorough care from medical professionals working for them as patients, not working for the government or ICBC, as this law will decide. Instead, this government is taking that away. They’re going to require an assessment, by law, direct from the doctor. The government or the ICBC is not your doctor, but they’re acting like they are. We should not have to say this, at this point, but this is what we’ve come to.

I also want to talk for a moment about the degree of unfairness. The independent report on ICBC last July said that a cap of $5,000 to $7,000, with a few other things, would save $840 million a year. A cap of $7,000 to $9,000 would save $770 million a year, just $70 million less. So although the principle of caps is itself unfair, there are also degrees of unfairness within the concept of a cap. The government has chosen a high degree of unfairness in choosing a low cap that can be lowered still by cabinet order.

British Columbians deserve affordable premiums from their public insurer, but they also deserve fairness. One principle cannot be sacrificed for another. I think that the NDP has not got it right. They have lost the balance.

While increased costs and claims are a continent-wide trend, I want to remind the House that the B.C. Liberal government took action to address them. We made increased penalties for distracted and impaired driving, and that reduced deaths by something like 40 deaths a year. We took measures to combat insurance fraud. Creation of a civil resolution tribunal, which we voted on yesterday, to provide claimants with other legal options aside from a trial lawyer and potentially lengthy court process — that’s going to reduce costs for ICBC. Road safety programs. Increased premiums on luxury cars.

Yet people now will get to receive just $5,500. If they have no other insurance, then they’ll be out of luck, whereas people who have other insurance, like life-long disability and health benefits, will be better served. People who have nothing will get even less.

[5:00 p.m.]

By attempting to pass this arbitrary bill and hold off the substantial changes made by the NDP behind closed doors, the NDP are trying to skirt public scrutiny, because putting a cap on minor injury claims is going to save the most money of any measure. The greatest savings will be made in private, out of the gaze of the media and the Legislature.

There won’t be debate about it. It’ll just be done, and people are going to suffer because of it, because they won’t be made whole by their insurance policy any longer. In that way, sick people, injured in accidents, will bear the major cost of ICBC deficits, and that’s simply not very nice.

The NDP could have chosen some other options. What are some other options for saving money at ICBC? They could have done quality assurance and fraud mitigation programs. That would have generated about $60 million a year in savings. That’s not a small amount.

Here I want to say that I’m a bit concerned about fraud. I must confess that I have a bit of a skeptical mind. I’m a bit suspicious about the huge increase in accidents, as if British Columbians suddenly became unsafe drivers. It would seem plausible to me that if there was a slow and steady and predictable escalation in accidents and resulting claims, it would be more believable. But my suspicious mind suggests to me that there may be something more negative happening here, and we should be following up more on fraud — the possibility that something is going on in terms of an organized scam that is taking taxpayers for a ride. I think that we need to follow that up with greater energy.

This civil resolution tribunal that we voted for yesterday in Bill 22 could significantly reduce legal costs to the system, both to victims of accidents and to ICBC. We put in place the civil resolution tribunal, as a government, and we’re proud of that. We think that has potential for savings.

ICBC has significant real estate holdings. We could take a look at what opportunities are out there. There are a number of other options in the report, and we should mine the independent report for those options.

Now, we know that capital at ICBC was down. I think it’s entirely appropriate for government to put cash back into ICBC. We took from it when it was profitable. That, too, is appropriate. We funded important programs with it, and now that the government is in surplus, I think it’s not a problem for us to put something back into ICBC. Should we have formed government, I have no doubt that we would have done the same.

Charging premiums according to a person’s driving record, I think, is a natural thing. It accords with the insurance principles based on risk — principles that I’ve been talking about. I have no problem with that. Related to the principle of risk is the insurance deductible. Something that I’ve always wanted is the option to increase the deductible on my vehicle so that I don’t have to insure against a minor claim. I can simply insure against catastrophic loss.

Right now my deductible for collision is $1,000, which is not very much. It doesn’t take a lot to damage a car by $1,000 in today’s terms. If I could increase my deductible quite a bit higher than that, I would be more careful in driving, and I would simply insure less of my own vehicle. That would be my own choice, and I think I should have the option to do that. If more people would do that to get smaller premiums, ICBC would have fewer claims, and people would have a good incentive to drive more carefully as well.

To conclude, there are a number of things that can be done, other things, but the NDP have decided instead to compromise on principle, to compromise on the issue of fairness — the principle of insurance itself — and it will force those who are hurt in motor vehicle accidents to bear the brunt of ICBC’s financial problems. For that, I am going to vote against Bill 20.

R. Sultan: The Attorney General continues to engage in the sport of disparaging the B.C. Liberal stewardship of our provincial auto insurer, ICBC, comparing what he inherited in the summer of last year as a “dumpster fire,” which, of course, he suggests, sound and prudent NDP policies will promptly put out and put right.

There have been characterizations of “a $1 billion deficit” — $1 billion — and hints that ICBC was on a fast track to insolvency.

[5:05 p.m.]

Well, let’s have a reality check. Regrettably, numbers for the most recent financial reporting period ending March 31, 2018, are not yet released, at least not that we’re aware of. But we can form some good impressions of the financial condition of ICBC from the annual statements preceding, since these bring us close to the end of the governance period of the B.C. Liberals.

I have consulted four documents. The first shows ICBC’s balance sheet from 2013 through March 31, 2017. The second shows ICBC’s profit-and-loss statement, which, as an aside, is curiously labelled “Consolidated statement of comprehensive loss.” That is quite an editorial statement in a dry financial report, which I’ve never encountered before, but I’m sure it doesn’t indicate any predisposition or bias, and I forgive any suggestion that it might. That’s for the periods ending 2013 through 2017.

The next statement I’ve consulted shows ICBC’s statement of cash flows, and the final exhibit I’ve consulted is the statement of changes in equity — somewhat opaquely, in my mind.

As we browse through these financial statements, what should we be looking for? For starters, evidence of a dumpster fire under B.C. Liberal watch and evidence of pending insolvency, if not bankruptcy, according to what has been communicated by the Attorney General right in this House not so long ago, unless dramatic remedial action is taken right away.

After what is now approaching almost two decades of service on the Public Accounts Committee of the province of British Columbia, I’ve learned that Crown entities such as ICBC often shape their financial story for an audience — that is to say the politicians representing the owners, the public — with a high degree of political shrewdness. The shaping of accounts to serve a particular fiscal story is, of course, in both public enterprise and private, more prevalent than many would want to admit, certainly not a story that the chartered accountancy profession would easily confess. But it has been said that accounting is as much an art as it is a science.

In the case of ICBC, there might be a temptation, through treatment of reserve accounts, to shift expenses from one period to another and perhaps exaggerate the bleakness of the financial situation under the B.C. Liberal tenure in contrast with a much more rosy view under good, prudent NDP management today.

Well, with that precaution, let’s look at the balance sheet, the profit-and-loss statement, the consolidated change in the equity account and the consolidated settlement statement of cash flows. What do we find?

One, it is simply not true that ICBC is broke and in the dumpster. That is a political nonsense statement invented by people intending to create alarm among the general public and to discredit their opposition.

Two, at the end of the last reporting year, March 31, 2017, ICBC had a surplus capital of $2,446,486,000 — i.e., about $2.4 billion — and I’m sure there are some nickels and dimes there that I haven’t counted. Even if, under some fluke, they lost $1 billion in the fiscal year just ended, March 31, 2018, they would still have capital of $1.4 billion, not to mention the tacit backstop of the provincial government. And they have an annual positive cash flow from operations in the range of about half a billion a year.

[5:10 p.m.]

I wish I had a net operating cash flow positive per year in the range of half a billion dollars. Wouldn’t life be sweet?

Unfortunately, it seems that the March 31, 2018, numbers are not yet out, so let’s consider the statements for the period ending March 2017. The main reason there was a loss — and there was a reported loss in the 15-month period ending March 2017 — was because the accrued reserves for unpaid claims was up by $1,424,831,000. Of the increase in claims costs of $1,924,110,000 in the 15-month period, 74 percent — almost three-quarters of it — was because of an increase in what ICBC is estimating it will cost to settle claims it has not gotten around to settling yet. They don’t know the actual numbers, so they are guessing at what they might be.

Now, I used to make my living guessing what the economy might be doing for the Royal Bank. It was a lot of fun. I could stand up there with my charts and point up and down, and people frequently believed me. But then some of my forecasts started to mature, and I thought it was time to move on to a different profession. The truth of the matter is, in the long run, none of us really know the future, even though many economists make their living pretending they do know.

ICBC’s net losses after all the adjustments and changes in equity for the 15-month period were $699 million. Of this amount, approximately $400 million was a decrease in the investment income — a decline in investment income in the middle of one of the biggest bull markets we’ve seen in the history of personkind. It fell from an earnings rate of 6.6 percent in 2015 to 3½ percent in 2017. The investment return was cut in half.

Now, I have not discussed this with the eminent chair of ICBC — who is famous in NDP circles, of course — saying: “How many people were dismissed over the fact that, on this huge pot of money, the rate of return earned was cut in half in the middle of one of the greatest bull markets of all time?” Those are rather rude questions to ask, particularly in a Crown corporation setting. But it was an epic fall in the offset to all of the other expenses earned by the surplus, which all insurance companies have because they are holding money to be paid out for the possibility — in fact, the certainty — of claims in the future. In addition, the claims cost for the 15-month period was adjusted upward for the prior years because they had been underestimated by $306 million.

The loss from non-insurance operations also comes into the picture. Here we have the reality that ICBC is leaned upon by the government to do all sorts of other odd jobs that we have loaded upon them, including licensing the cars and keeping track of the registration of all of these automobiles. Should this loss be attributed to the Insurance Corporation of British Columbia insurance business? Certainly not in my view. I’m not suggesting spinning off the function, but if you’re to assess the health of the insurance business, don’t drag into it all of the other odds and ends of assignments we’ve attached to them.

Furthermore, the Attorney casually tosses off the loss of $1 billion when the net loss for 2017 was reported as being $913 million. I suppose the AG thought it was okay to round up to $1 billion. But there are several problems with that number. Only an economist would round up $913 million to $1 billion, but I’m afraid I’m guilty of that.

[5:15 p.m.]

First of all, the loss from licence plate operations, as I’ve said, is significant, $156 million. I’ve already made the case that we should relieve ICBC from that penalty.

Second, the $913 million figure is for 15 months, in comparison with the year preceding, which is a 12-month total. They changed their year-end. So all of the numbers for the most recent period are inflated by encompassing an extra three months. If we adjust downward for the three extra months, the loss would be reduced to $730 million. Oh, we’re trimming away.

Next we have the unusual falloff from the investment earnings, so instead of earning 920, we earned only 615, on a 15-month basis, or about 400, annualized…. A little bit more than that. Maybe my arithmetic’s a little bit rough and ready there — economist version. If we’d been able to take advantage of that increase in investment earnings, then our loss would have been further reduced to the neighbourhood of $200 million.

So that $1 billion figure that the AG keeps talking about, which was never supported by any figures to start with, has now been trimmed down to something perhaps in the range of one-quarter or one-fifth of the number that he’s been shouting from the rooftops as this fiscal disaster which is our publicly owned insurance company. He may be a brilliant lawyer, but I would suggest his accounting skills need a little bit of brushing up.

Finally, let’s consider the insolvency bankruptcy argument. At the end of the last public reporting period, as I’ve already said, ICBC had a net worth of around $2.4 billion. Let’s be pessimistic and believe they in fact lost $1 billion this last year, which would be five times the normal operating loss under B.C. Liberal guidance. Five times greater loss under the NDP. Well, fancy that.

Frankly, I can fancy that, as a matter of fact. But accept the number as a possibility only, with the financial skills of this government on display. It is a possibility. That would still leave us with a Crown corporation with a book value of $1.4 billion, plus the backstop of the government. In short, far, far from the liquidity and financial disaster that the experts opposite me have predicted. And a long way from the insolvent “dumpster fire,” a phrase the AG is so fond of conjuring up.

Now, I must admit that the skill of imagery is to be admired. The dumpster fire is far more colourful and far more effective as a means of communication with the voting public than somehow walking Fred and Martha through a boring balance sheet. Lots of luck with that exercise. But I do say: be careful with tossing around these unwarranted nouns and adjectives. Dumpster fire. Insolvency. Incompetency. You know the list of adjectives that we’ve been subjected to.

When Standard and Poor’s comes a-visiting, backed up by the folks from Moody’s, they will be very interested in learning about what financial disasters lay in the shadows unrevealed in the NDP’s published financial books, as seems to be so eloquently claimed. That is the picture that the AG is painting, and in my view, it is inaccurate, misleading and unfortunate.

To conclude, the reason for this alarm being raised, of course, is to present a convincing case for the passage, like right now, of Bill 20, which, the notes in front of me point out, are a gross invasion of privacy, an interference with the doctor-patient relationship and a substitution of cabinet decision-making for decisions which should be made between a doctor and a physician’s patient.

[5:20 p.m.]

This is a rather large leap in the interference in our lives that the folks on the opposite side of this hall are proposing. It’s one that, frankly, I do not appreciate, particularly when it’s backed up by such a flimsy financial argument — based on my own analysis of the balance sheet, the profit-and-loss statement, the cash flows and the reconciliation of the equity accounts.

Some history. ICBC started out under the NDP government. When it began in 1974, I am told, it had zero equity, and it lost about $40 million in the first year of operations, which is no surprise. A total of $180 million had to be paid out of general revenue by the B.C. government of the day to keep the fledgling ICBC insurance company afloat.

I think we all agree now, even though the diehards and the ideologues might still argue against it, that it turned out, in fact, to be a very good idea, and we should compliment the NDP of the day for having originated it.

That sum was charged back to the Social Credit government, by then, which had replaced the originating government. They adjusted rates to break even, for 1976, and from that early beginning, the fiscal history and record of ICBC proceeded. Pat McGeer was the Social Credit manager in charge in those days.

Pat is still around. He’s a researcher at the fantastic UBC Centre for Brain Health, which I helped lobby for under Doc Cynader. He is a living illustration…. He still plays tennis every day. He has a magnificent house, which I’m sure is causing him to weep, with the education tax cost now imposed. But he does prove that there is life after ICBC, after all.

Its predicated demise, even today, is highly premature. I just wish the Attorney General would do his sums a little bit more accurately.

S. Gibson: I just want to acknowledge, with gratitude, my colleague here from West Van–Capilano. I think all in this House appreciate that his background and experience in this field are very useful to this House, as we deliberate on Bill 20.

If there’s one thing we have in common, we all know and patronize ICBC. My constituents often alert me to their concerns about ICBC. It has considerable currency around our province. I think we have to acknowledge, whatever side of the House we’re on here today, we lament the challenges, to some extent, that ICBC is struggling through at this time.

But when we look at Bill 20, I think we’re mindful of the fact that simple solutions, superficial solutions, really aren’t the answer. If you talk to constituents, if you just talk to somebody on the street or somebody that comes by your office and they want to talk to you about ICBC, there are, really, two themes: “I want to be treated fairly because I feel like I own ICBC” — and we do as electors, I suppose, as citizens — “but I also want to pay premiums that are reasonable, that I feel comfortable with.”

As we’ve heard from a colleague here, the challenges facing ICBC are significant. On the other hand, we don’t want to overstate the plight that ICBC is currently facing.

[5:25 p.m.]

The whole point of public insurance was to keep the costs down for the individual. We’ll notice now that that really has been squandered to a large extent.

I think the word that comes to mind for me is fairness. You want to have confidence in the system. You want to believe that ICBC is working for your own interests.

I can speak personally. My oldest daughter was hurt very seriously in a motor vehicle accident that was debilitating for both her and her husband, riding in the back of a small vehicle in Vancouver. All of the anguish that she had to experience. Now, as it turned out, in fairness, I think I will give ICBC credit that the compensation was probably reasonable. But the anguish that we all face, if we face any kind of a tragedy like that…. We know the problems that ensue.

The government really wants to move into a different kind of role when dealing with the public. Bill 20 hurts British Columbians for a few reasons, and they’ve been enumerated today quite well. I’m going to add a few of my own remarks.

So $5,500 for minor injury claims. I don’t know where that figure came from. Why wasn’t it $6,500 or $4,300.75? Why $5,500? Well, we’re not clear quite on why that figure was chosen.

This government will have the ability to reduce benefits to our citizens behind closed doors. If there’s one thing that we value about public bodies, it’s transparency. I would say this about our province: government is pretty transparent. If you want to find out what my colleague here or myself spend on our hotels or our meals, you can find out. The taxpayers can find out. It’s pretty boring reading, but you can find out.

Interesting how this government is moving the transparency of those kinds of decisions behind closed doors. You’ve got to wonder why. What’s the benefit to the public, to our citizens? Removing transparency makes my antennas tingle. I start to wonder: what are we covering up here? What’s the point? We have public debate on legislation here. It’s the hallmark of democracy. I would say that probably only about half the countries in the world have democracy as we have it here. Every time that’s moderated, every time you take away transparency, I feel a bit of a concern.

The arbitrary decisions do not address the complex needs of British Columbians — arbitrariness. Now car accident victims without other forms of health insurance will be left to fend for themselves with minimal compensation. You almost have two tiers — one with and one without. Is that fair? Is that the way we treat people?

One thing that you’ll find, if you talk to your doctor or talk to anyone, is sometimes when somebody has an accident — or even something else, something that’s debilitating — the evidence for that, or the result of that injury, doesn’t emerge right away. You’ll find that — in the case of my daughter, as I mentioned earlier, a personal example — some problems emerge later on, after the time limit that is being imposed here.

I want to make a particular point here about that, because sometimes the tragedy of an accident, the ailments that ensue, can only be observed with the passage of time. If this time is limited, as is being done here, well, good luck to that person when they try to make their appeal. Forcing that tight time frame has dangerous implications for the long-term health of that driver.

[5:30 p.m.]

I think it’s important to note that the government has been making some criticism of the opposition, of the way they handled some of the issues relating to ICBC. But I think it’s worth noting that a number of measures were introduced. I had the distinct pleasure, you might say, of serving on Treasury Board when some of these came forward.

We were very concerned about distracted driving. As a matter of fact, I’m advised now that distracted driving causes more injuries and death than impaired driving. Now, that’s a recent stat. I’m not sure whether it’s local or whether it’s Canadian, but this is troubling, with the advent of the cell phone and people distracted in their cars. So we increased penalties for distracted driving.

There’s often a suspicion about insurance fraud. I happen to know a retired RCMP officer that does work for ICBC, looking at fraud. I give ICBC credit, because fraud is a problem everywhere, including people — a sliver of our population — who, at times, would take advantage of the system. We introduced measures to combat fraud.

We talked earlier with regard to the other bill of the civil resolution tribunal to provide claimants with other legal options aside from a trial lawyer and a potentially long court process.

Road safety programs were something that we were particularly interested in. Road safety programs were widespread around our province. We supported that. There was a budget for that. Both the RCMP and the city police departments introduced extensive programs. Some of you here in the Legislature will be aware of those in your own communities.

This bill will force overly expeditious assessments, trying to move things along so quickly, of injuries even before a diagnosis is final. And this is a particular concern to me as one observer of this legislation. Yes, it’s true. We want to deal as quickly as we can, within reason. But when you become overly expeditious and just kind of move things along for their own sake, I worry.

For example, nerve injuries; internal health traumas; spinal injuries, which are probably the most tragic — as noted, I alluded to this earlier in my remarks — may not be recognized or diagnosed for weeks or even months after the incident. Simple solutions are not going to work to address the concerns that we find and observe at ICBC.

If a healthy elementary school child and her great granddad are travelling in a vehicle and they’re involved in a tragic serious accident, I think we’d realize that the accident is going to have a different impact on either one of these individuals. Same vehicle, same accident, but different impact. So we have to be sensitive to that and understand that the implications are going to be quite significantly different.

They’ll both be eligible to receive the $5,500 — if there are minor injuries, and I should make that point. What about if they have no other insurance? That’s it. No long disability. No other health benefits — $5,500.

By attempting to pass this arbitrary bill and hold off these changes, behind closed doors, the NDP government is trying to elude scrutiny. I worry about that.

Those are my capsule remarks on Bill 20. I think there’s been a good discourse on this side of the House. I appreciate the remarks made.

Again, I want to acknowledge, in particular, my colleague, the member for West Vancouver–Capilano — how he scrutinized some of the financial statements was very helpful today.

I’ll be dissenting on this bill.

[5:35 p.m.]

J. Martin: I’m happy to rise here, as we come to a close of another week in the session.

ICBC is one of those institutions that…. You really have to experience it, and you have to be a British Columbian. There’s no way you can really explain it to anyone anywhere else in the country.

Shortly after ICBC was up and running, I was taking my driver education training with Young Drivers of Canada, and I got my licence. So I’ve never known…. I’ve never been on the road prior to ICBC. It’s just been an enduring regularity that’s been with me from day one, going way back.

For some reason…. I don’t know what it is, but there’s just certain events in ICBC’s history that have always stayed with me. When my colleague, a few moments ago, mentioned Pat McGeer being the minister, I’m pretty sure I’ve got a big box of old 45s stored away somewhere, and it has that parody tune that came out when Pat McGeer was the minister responsible, and ICBC rates went up sky-high. And the 45, the song, was: “Stick it in Your Ear, McGeer.”

I remember playing that and hearing it on C-FUN and CKLG 73 way back in the day. I’m pretty sure I do have it. I don’t know how many copies are left or what the condition of it is, but maybe I should take it to one of those record fairs one of these days and see what it’s worth. I’m so curious. I’m racking my brain for what was on the B-side of it.

[Mr. Speaker in the chair.]

Shortly after ICBC was up and running, they had a massive, big strike, and I remember a bunch of my irresponsible and careless buddies that racked their cars up and just had one heck of a time trying to get any repairs done on them, because the ICBC strike dragged on and on.

Fortunately, any collisions I had in my driving history didn’t happen during that particular time. But I’ve had one very serious accident, where I was not the driver. I was a passenger. I was hurt pretty bad — a busted jaw, busted collarbone, smashed in my face. The bottom half of my face is plastic. I’ve got more bridge work than I can remember going on in there.

I was just treated so well by the corporation. I did get a lawyer, and it took a while. Maybe I was a little more impatient back in those days, but I was treated well. I think I was treated fairly. I also had a minor injury, which is probably something a lot of people are going to be talking about with the legislation before us today. It wasn’t anything serious, but it did require medical attention. Again, I was treated more than fair by the corporation.

Everyone has their gripes about ICBC. Obviously, the big one is the rates. We hear these comparisons of how much we pay in British Columbia as opposed to other jurisdictions. I’ve always had this idea, and I’ve never wondered why no one ever took me serious with it. I explained it just a few weeks ago. I was sitting down at the Rotary club with some friends, and there were several people. There was a realtor there. There was a guy who owned a car dealership, a lawyer, an investment consultant.

I put my idea forward, and I said: “Listen, if the government decides they’ve got to raise ICBC rates, instead of….” Let’s say it’s $300 across the board. I’m saying: “Let’s not do that. Rather than $300 across the board, why don’t we make it $3,000 for the 10 percent of worst drivers out there?” You get the exact same revenue. You’re going to…. I’m going to use the same language as my colleague from North Van–Lonsdale. You’re not going to annoy the electorate as a whole. Just raise it big time, huge, for the worst drivers.

[5:40 p.m.]

We don’t do that, and I’ve always kind of wondered why we want to spread the pain around and distribute the increases so that good drivers, flawless drivers, drivers of perfection, get hit as well. I’ve never really quite come to terms with why we go down that road.

The legislation that we’re looking at today is significant in the reforms that it’s introducing, and they’re going to be controversial. It’s very, very likely we’re going to see some legal challenges of certain provisions of the legislation.

The big part is that there’s going to be a designation of what constitutes a minor injury. On my planet, my doctor decides if I have a minor or a major injury, but what we’re going to be seeing is the executive council will decide what is minor and what is not minor. I’m not aware of a physician on that executive council. I’m happy to be corrected if I’ve missed something. But that’s somewhat disturbing.

There are certain things that politicians are probably better placed to do than anyone else — none of them come to mind at the moment — but I don’t think that determining the extent of the injuries following an automobile collision, an accident…. I don’t think that’s something that…. Not only should politicians not be making that determination; they should be probably be as far away from that process of decision-making as possible. So that is somewhat disturbing.

To cap personal injury or the awards for what becomes designated as a minor injury at $5,500 — there are probably people in this room that couldn’t get their fender replaced on their vehicle for $5,500, so that’s problematic. We all know that a lot of injuries, a lot of the pain and suffering, don’t come until much later. People get up, and they shake it off: “Yeah, I’m fine. It’s not a big deal.” And they’ll rotate their shoulders and look around. “Yeah. Okay. I think that I’m all right.”

A week later, a month later, six months later, something is amiss, and that may very likely prove to be a chronic pain for the rest of a person’s life. It may interfere with their quality of life, and it may interfere with their career, with their employment — and the amount of time that they may spend with physio or with massage or having to deal with painkillers and medication and all of the complications that can come around that. We’re going to see some people that literally get thrown under the bus on this.

It’s not deliberate. It’s not intentional. But I find it odd happening at a particular time, where this government and the government before, that I was a member of…. When we’ve added some of these presumptive designations for illnesses and for workplace sickness and such, which result in a person being basically pensioned off…. They’re cared for, and they’re looked after, and they’re treated well.

Yet someone that doesn’t have that type of coverage, who gets their trauma as a consequence of an automobile accident — depending on how this determination of what constitutes a minor injury goes — may have a problem for the rest of their life, and the compensation for it is as meagre as can be.

I’m keeping my eye on the clock. I will be speaking more to this when we resume here on Monday. I think that a lot of my colleagues are going to be speaking to some of the issues around this piece of legislation.

Interjection.

J. Martin: A week Monday, okay. I’ll have lots of stuff by then, I’m sure.

Mr. Speaker, welcome back to the chair.

Noting the hour, I reserve my right to continue, and I now move adjournment of the debate.

J. Martin moved adjournment of debate.

Motion approved.

[5:45 p.m.]

Committee of Supply (Section A), having reported resolution and progress, was granted leave to sit again.

Hon. G. Heyman moved adjournment of the House.

Motion approved.

Mr. Speaker: This House stands adjourned until 10 a.m. Monday morning. That is Monday, May 7.

The House adjourned at 5:48 p.m.