Orders of the Day

Hon. M. Farnworth: In this chamber, I call third reading on Bill 27.

Third Reading of Bills

BILL 27 — PILL PRESS AND RELATED
EQUIPMENT CONTROL ACT

Bill 27, Pill Press and Related Equipment Control Act, read a third time and passed.

[1:35 p.m.]

Hon. M. Farnworth: In this chamber, I now call committee on Bill 20. In Committee A, I call continued debate on the estimates of the Ministry of Health.

Committee of the Whole House

BILL 20 — INSURANCE (VEHICLE)
AMENDMENT ACT, 2018

(continued)

The House in Committee of the Whole (Section B) on Bill 20; L. Reid in the chair.

The committee met at 1:37 p.m.

On section 29 (continued).

J. Yap: I would like to pick up where we left off from this morning. We were having a good discussion with the minister on section 29, which is a key section of this bill, which deals with the definition and the whole aspect of minor injuries. Just before the adjournment, the minister had discussed some of the measures taken, and I’d like to follow up on this.

Other than the government’s announcement of the red-light camera, photo radar 2.0, can the minister tell us what he has planned, specifically, to address distracted driving? Because we know from many studies that 90 percent of people carry these devices, the smartphones, and regrettably, many still use them and are distracted while driving a motor vehicle. Can the minister tell us what, specifically, he and the government are doing?

Hon. D. Eby: I’m going to again take exception to the member’s attempt to stop government from preventing people from speeding through red lights in intersections — where there are more than 80 accidents on average per year, causing death, injury and destruction — by calling it photo radar 2.0 and attempting to organize people to stop this from happening.

I am astounded that that is the position of this opposition, and I find it completely irresponsible — not only with respect to ICBC’s finances but with respect to the injuries and deaths that would be caused if we didn’t begin to try to get those numbers of accidents at those intersections down with great big signs that say: “If you speed through this intersection and go through a red light, you will get a ticket.” It is incomprehensible to me why the member insists on that.

With that said, I’ll run through a number of the initiatives that government’s brought underway in just nine months. I’ll note that for 16 years, there was a lot of time to do work on distracted driving. That was not done.

We increased public awareness of the risk of distracted driving through a new advertising campaign in September. We talked about the red-light cameras, which the member opposes; designated distracted driving as a high-risk behaviour under ICBC’s driver risk premium program, making distracted driving a DRP offence for the second violation.

[1:40 p.m.]

Distracted driving technology pilots. This is technology that a customer can put in their car, or it could potentially be used for new drivers or multiple offenders, which would prevent them from using their phones while they’re driving, or it could potentially be taken on voluntarily by British Columbians in exchange for lower insurance premiums.

We have a dangerous roads initiative, a collision reduction program to identify and retrofit infrastructure regulations and signage at dangerous roads and intersections across the province.

I think I canvassed but just to underline, we are doing a full rate design review process, where high-risk drivers will pay more and good drivers will be rewarded with lower insurance rates in order to incent drivers even further to engage in good driving behaviour.

The Chair: The member for Oak Bay–Gordon Head rises on a point of order.

A. Weaver: I have some concerns about the line of questioning here. My understanding of committee stage is that we’re to have questions with respect to the section at hand here. The section we’re discussing is not about red-light cameras. It’s specifically about definition and interpretation of minor injuries. I fail to see the link between a discussion of political purposes for bringing in red-light cameras, or not, and the actual substance of this section, which is definition and interpretation of minor injuries.

The Chair: Thank you for raising your point. Members certainly have enjoyed latitude in the past.

J. Yap: We’ll move on from the cameras. Will the minister be working to increase education and services to drivers about distracted, intoxicated and, soon, high-on-cannabis driving?

Hon. D. Eby: ICBC regularly advertises to the public around safe driving behaviours. I encourage the member to attend estimates, and I would be happy to go in detail around their planned spending for the year on advertising related to safer driving behaviours.

J. Yap: Can the minister tell us how many cases since 2012 have been settled overall by ICBC?

Hon. D. Eby: The people who are here in the chamber are…. There’s ICBC’s chief legal officer. We’ve got lawyers from the Ministry of Attorney General and the executive director from the Ministry of Attorney General, who are experts in this bill that’s in front of the House.

I will have detailed financial information, numbers related to…. I will endeavour to recover this number for the member — the number of settlements since 2012 by ICBC — for estimates, which is what that process was set up for. I’m afraid I’m ill-prepared to provide detailed financial or logistical information about ICBC, because we’re preparing here to discuss the bill, and these are the experts I have in the House here today. I would encourage the member to bring those questions to estimates.

J. Yap: We’ll follow that up at the estimates debate.

With the legal experts here, can the minister tell us how many cases were settled outside of a courtroom?

Hon. D. Eby: I encourage the member to bring that question to estimates for the same reason that I just outlined.

M. Lee: I appreciate the Attorney General’s comment just now, but given the comments that were made before lunch, I’d just like to come back to a point that was mentioned.

We’re trying to get at, of course, the purpose, the aim, the objective and the benefit of having minor injury caps. That’s the reason why, now, at this committee stage, we’re getting to these questions, which relate to: what other initiatives does the government have planned to deal with the concerns around increased accidents, the increased costs from these accidents?

Coming back to a particular point, I’d like the Attorney General to reconfirm a statement that he made. It was, I believe, an indication that when he looks back, including over this last 12-month period, there’s been a 260 percent increase in costs relating to minor injury claims. Can I ask the Attorney General to reconfirm that statement and perhaps provide elaboration on that statement?

Hon. D. Eby: In 2014, a third-party business firm was retained by government — Ernst and Young. They were asked to do work. “Have a look at ICBC, and tell us where the corporation’s going. Give us advice about where to go.”

They provided a report directly to government. The report was not released in its entirety to the public, nor was it released to ICBC. In fact, the members of the cabinet — at least one has acknowledged doing this — removed seven pages from that document.

Among those seven pages that were removed before it being released to either ICBC or the public were pages that said the following.

[1:45 p.m.]

“ICBC has some work to do in further optimizing its operations; however, these changes alone will not contain claims growth to within sustainable levels in the medium to long term, in particular with regards to bodily injury claims costs.

“In order to sustain low rates going forward while continuing to work in the best interests of policyholders, the province could consider the levers at its disposal, such as introducing limited product reform to cap benefits for minor injuries and adjusting the premium structure to ensure equity among policyholders by driving-risk rating.

“This would require a bold change in policy direction, but the results observed in other jurisdictions in terms of claims cost reductions are compelling.”

The government had full notice about initiatives like this in 2014. I think in 2014 there was an opportunity to do a very significant road safety initiative that we would be reaping the benefits of now, in 2018. But instead of that, these pages were cut out of the report before it being disclosed to the public or to ICBC.

We are taking those steps now — four years later, unfortunately — after more than $2 billion in losses at ICBC. If the member is wondering where the idea came from, it was available to the previous government in 2014, and it was just as available to us when we sat down and stared a $1 billion deficit in the face at ICBC.

M. Lee: I’m familiar with the statements of the Attorney General inside this House and outside the House. I was not asking about where the idea came from. I was asking about the 260 percent increase, what period of time that relates to and the explanation around that.

Hon. D. Eby: That’s from the 2000 to 2016 period that was in the Ernst and Young report that was waiting for me on my desk when I started responsibility for this file.

I just noticed that we were joined by a school group. It might be helpful for them to know that we’re talking about a bill in committee stage. Members on the other side, in the opposition, are asking me questions about it. I’ve got staff here to assist me in answering those questions so that everyone in the House knows what they’re voting on and understands it fully.

Madame Chair, here, will referee between us, and you’ll hear a very vigorous discussion of car insurance this afternoon. I hope you enjoy it.

M. Lee: In what ways will minor injury caps deal with this 260 percent increase?

Hon. D. Eby: According to that Ernst and Young report, minor injury…. They’re called pain and suffering awards. This is a recognition by the court that the person has been injured financially, giving them some award to recognize that it’s a terrible thing to be injured by someone else’s actions.

Those awards started at about $5,000 in 2000 and went up to about $16,000 over the period. The cap on these rewards at $5,500 enables government to say: “Yes, we still recognize that it’s a terrible thing to be injured by someone else. But our focus is not going to be on a pain and suffering award to recognize that. Our focus is going to be on ensuring that you have access to benefits that will get you better — that you have access to the full cost of physiotherapy, counselling, acupuncture, all kinds of different benefits, the full cost of that.”

Plus, we also want a system that is responsive so that you don’t have to go through years of B.C. Supreme Court with multiple experts at huge costs to the system that are driving up insurance rates for everyone else.

This limit on the pain and suffering award is squarely directed at this issue of the fact that these awards have gone up so dramatically in such a short period of time.

M. Lee: What is the current average cost, then, in terms of a minor injury claim? Is it $16,000 or some higher price?

Hon. D. Eby: The $16,000 is the pain and suffering award. The actual cost is a little over $30,000.

M. Lee: By imposing a minor injury cap, then, in terms of pain and suffering, just on the face of what was said, that’s an $11,000 difference. Where does the claimant get compensation for that difference?

Hon. D. Eby: All accident victims will see an increase in benefits available to them from health care professionals of various kinds.

In addition, they’ll have access to additional categories of care provider that they didn’t previously have access to. People who are catastrophically injured will have access to double the level of lifetime benefit.

[1:50 p.m.]

Ratepayers, drivers, across British Columbia will, we hope, be relieved of the burden of having to pay $400 each additional, per year, in order to keep up with these escalating costs.

M. Lee: My colleague the member for Richmond-Steveston, before lunch again, talked about what effectively is a $3,300 average increase in benefit compensation that would be available for those 60,000 British Columbians. That’s, again, a difference of $3,000. I’m still interested in where the $11,000 of coverage would go for a claimant for pain and suffering.

Hon. D. Eby: The member is conflating several different categories, and the math is confusing at best.

The combined factors of getting minor injuries out of complicated, lengthy, multiple-expert B.C. Supreme Courts and into the civil resolution tribunal, putting a limit on the pain and suffering award — not the out-of-pocket costs, but the pain and suffering award — for people with minor injuries at $5,500….

The combined impact of those two initiatives results in two things. One is sufficient resources to increase all the benefits that I keep listing over and over, and the other is to get ICBC, hopefully, back into the black, with, after paying for the increased benefits, $1 billion in savings.

If we did not take these actions and we just said, “Keep everything as it is. We want it keep paying out these ever-increasing pain and suffering awards. We want to go through the complicated B.C. Supreme Court process. We want ratepayers to pay for all that,” we would have to charge $400 per driver in increased premiums across B.C.

I understand the idea that it would be good, would be great, to keep these pain and suffering awards where they are, or even to increase them, if we could give more money to people and there was no cost to that, but there is a cost to that. There is a cost to the full B.C. Supreme Court process and paying for all the experts and all these things.

So we said: for minor injuries, let’s get them into a more expedited process, with a much lower overhead. Let’s make sure that the focus is on care, getting people better, paying for all their benefits, paying for their out-of-pocket expenses. We’re going to reduce the pain and suffering award. The benefit of that is: the huge, administrative cost of this current system is so significant that we can cover people’s wage loss, we can cover their full out-of-pocket expenses for all these different categories, and there’s still $1 billion to get ICBC into the black.

I saw the members vote against this bill at second reading, and I wonder what they are voting for. Are they really saying that the current system is one that they support? Are they really saying that we want drivers to pay $400 each, extra, to preserve the current system?

I think no matter how you look at it, ICBC losing $1 billion a year is not a system that works. We have to figure it out somehow, and this is the direction that we’re choosing.

M. Lee: As the Attorney General has indicated, of course, the finances of ICBC, I’m sure, will be reviewed during estimates. There’ll be opportunity to do that, and I appreciate the Attorney General ensuring that that will be the case.

In terms of the $1 billion loss, as the Attorney General claims is the case, that’s one thing. In terms of the savings that will be derived from this new mechanism…. Just to recap, we’re talking about $1 billion per year, plus $206 million, as we talked about, in terms of increased benefits. Is that correct?

Hon. D. Eby: Yeah. The overall savings, after taking into account the increased costs of the improved benefits, is about $1 billion, projected.

M. Lee: Does that include the $206 million for additional benefits?

Hon. D. Eby: The projected savings include the cost of the additional benefits. I think I’ve said that.

M. Lee: Back to the earlier point about the gap. I appreciate the math is not that simple, but just from what I’m seeing, pain and suffering clearly is being lowered from what would be an average of $16,000 to the new cap of $5,500.

The Attorney General asks: “Why is it that our side of the House is opposed to Bill 20?” It’s around the imposition of the minor-injury cap. There are issues and concerns that we’ll be canvassing at length here, not to mention the short period of time in which this has been on the floor of the House. We are trying to gain a better understanding as to the impact on minor-injury claimants that might result from the imposition of this cap.

[1:55 p.m.]

Again, I’m just hearing, just from my simple understanding of the math that is involved here, that we’re going from a $16,000 average to, potentially, $5,500.

I’m not seeing the additional compensation for pain and suffering for these claimants, other than potentially an additional $3,000 of benefits on average. I appreciate that we’re dealing with averages here. But I’m just focused, of course, on pain and suffering, which is what this section relates to.

Hon. D. Eby: I thank the member for his comment.

J. Yap: Can the minister tell us how the $5,500 cap was arrived at and why it would not be placed directly in the legislation — that number?

Hon. D. Eby: Three provinces have no-fault insurance. They have zero for pain and suffering awards for minor injuries. Alberta has a $5,020 limit on pain and suffering awards. Prince Edward Island has a $7,545 pain-and-suffering award limit. New Brunswick has a $7,818 limit, and Nova Scotia has an $8,486 limit.

B.C. is in the middle of the pack, exactly, between the provinces that don’t give anything and Nova Scotia that has the highest cap. Every single province has addressed this except for British Columbia, and we’re right in the middle of the pack. It might help the members to know that for every $1,000 increase in the cap limit above $4,000, potential savings are reduced by approximately $30 million or roughly 1 percentage point of premium rate.

J. Yap: I thank the minister for that. But I am wondering why the minister did not set the cap to be closer in the range of Nova Scotia and New Brunswick, $7,500 to $8,500.

Hon. D. Eby: Because after their government’s actions, hon. Chair, we can’t afford it.

J. Yap: Why has the minister left the cap to five-year intervals for review and not indexed to inflation like the other provinces?

Hon. D. Eby: It’s incorrect. It is indexed, and there’s no five-year review.

M. Lee: I know that the member for Richmond-Steveston has additional questions about the $5,500, but I want to come back to the point that was just made in terms of the comparison of our $5,500 proposed here in British Columbia under this bill to other provinces.

Shouldn’t it be the situation, though…? Would the Attorney General please respond to this question? In terms of…. Shouldn’t this cap really be based on what we believe — if we’re going to put a cap on minor injuries — the appropriate level should be, as opposed to…?

Because when we talk about what we can afford, there are a lot of different things that can be done with ICBC, as we were trying to canvass earlier and we will canvass further. In terms of talking about the $5,500, I’d just like to ask the Attorney General: on what basis is the $5,500 level being determined?

Hon. D. Eby: We’re learning from the experience of other jurisdictions who capped this a long time ago, because they understood, like we understand — unfortunately, like the previous government did not understand — that these escalating and out-of-control costs for these types of awards were not sustainable.

The only way to pay for these awards increasing the way they have been is to increase premiums for drivers, which, by the way, the previous government didn’t do either. The gap between premiums collected and the escalating awards has now resulted in billion-dollar deficits of ICBC. I do appreciate the member’s interest and, certainly, a shared interest on my part. I’d like this award to be as high as possible.

But what we’re trying to do here is strike a balance between ensuring that people get the benefits that they need, that they’re not out of pocket going to care providers, that they get their out-of-pocket expenses covered for their wage loss, that the full tort system is preserved for serious and catastrophic injuries and that we have a system that can deliver ICBC that’s in the black and providing affordable car insurance to British Columbians. That’s the balance that we’re trying to strike.

[2:00 p.m.]

If the member has identified $1 billion in savings somewhere, I would be very glad to hear him put those suggestions on the record this afternoon, because we’ll pursue those too and cut rates even further. I’d love to hear about that.

M. Lee: Well, the more we have this discussion, I…. We talk about balance. It strikes me that we’re…. I appreciate that ICBC, at least in the eyes of the government, needs to deal with what has been referred to as a large loss situation, which, again, we will have the discussion about. But in the instance of what’s being proposed here, it strikes me that we’re talking about finding ways to increase savings on the backs of claimants for pain and suffering.

If we’d like to have the $5,500 level, or whatever level is appropriate for minor injury caps in this province, to be as high as possible, to the extent that it’s lower than other provinces, is the Attorney General suggesting that we’re not appropriately compensating claimants for their pain and suffering as compared to other provinces in this country?

Hon. D. Eby: No, I’m not suggesting that.

M. Lee: Well, with respect, it sounds a bit like that. But let me just go to another question.

In terms of the other provinces in this country, what has the experience been for these other provinces that have imposed a minor injury cap in terms of the effect on premiums?

Hon. D. Eby: This report was waiting for me on my desk. It was commissioned by the previous government. It recommended to the previous government a full no-fault system. Just by way of background, so that the member knows that this isn’t some NDP-cooked-up report of some kind…. I keep hearing him suggest that the numbers around ICBC’s losses are somehow: “the member claims” and “the member says” and “we’re going to examine that.”

If the member thinks that we wiped $1 billion in income from ICBC off the books just to make a point, I’d be startled by that suggestion. We’d rather spend that $1 billion on programs for British Columbians, instead of having it wiped off the books of the province. But I digress a bit.

This report, which was commissioned by the previous government, says as follows of jurisdictions that impose this: “Bodily injury loss costs in these provinces continue to be lower than levels in 2000, with decreases ranging from 10 percent to as much as nearly 60 percent in one of the provinces. By comparison, B.C.’s bodily injury loss costs have increased nearly 85 percent over the same period.”

What would the situation have been, had the government, in 2014, not cut pages out of a report and instead looked at addressing the cost drivers at ICBC?

M. Lee: Well, I acknowledge the Attorney General for quoting from that report, but I was asking about what the experiences are in other provinces. Given that we have knowledge and understanding as to how minor injury caps have been brought in by other provinces, what has been the impact, as a result, on premium rates?

Hon. D. Eby: “Bodily injury costs in these provinces continue to be lower than levels in 2000, with decreases ranging from 10 percent to as much as nearly 60 percent in one of the provinces. By comparison, B.C.’s bodily injury loss costs have increased nearly 85 percent over the same period.” So I would say, if the member wants a summary, that their experience was favourable compared to ours.

J. Yap: I’d like to explore with the minister who he consulted with respect to the $5,500 number. Did the minister consult with Mothers Against Drunk Driving?

Hon. D. Eby: I’m not aware of the position or the interest of Mothers Against Drunk Driving in relation to this proposed legislation, but certainly I’d be glad to have my staff reach out to them. I thank the member for the suggestion.

J. Yap: Did the minister consult with Doctors of B.C.?

[2:05 p.m.]

Hon. D. Eby: When we set the level, we looked at levels set in other provinces to see what was fair. A number of provinces pay zero. We said: “That doesn’t seem right.” We looked at the high end, which was Nova Scotia, and then we looked at provinces that were more in the middle, like Alberta and New Brunswick. We said: “What would be fair in the context of what is paid across Canada, keeping in mind that each $1,000 beyond $4,000 means that drivers have to pay 1 percent more in their car insurance? Let’s try to come in the middle of the pack, about $5,500.”

We want to recognize that someone has been injured, with the pain and suffering award. We don’t want to go to zero like other jurisdictions. We want to say: “You have suffered.” We want recognition for that. But we don’t want, and this government will not tolerate, endless insurance rate increases for pain and suffering awards that are not connected to actual out-of-pocket expenses, that are not connected to health care to help people get better. That is what this definition in the bill is about, and that is why it is here.

J. Yap: I’ll take that as a no.

Did the minister consult with a surgeon of any kind?

Hon. D. Eby: The member knows we’ve been actively engaged with Doctors of B.C. because I’ve talked about it a bunch of times. I’m not sure what the expertise of Doctors of B.C. or surgeons would be in relation to pain and suffering awards and their escalation in British Columbia over the relevant period. It is recognition by the court in tort law that someone has suffered a loss that is pain and suffering. “You have suffered, so we’re going to provide you with this award to recognize it.”

The massive escalation in these awards from $5,000, at the start of the period, to $16,000 to provide that recognition is not sustainable. That is why a limit has been put on those types of awards while increases for health care to get people better, to get them back — increases for their out-of-pocket expenses, for their lifetime limit on these types of benefits when they’re catastrophically injured…. That was the balance that we aimed to strike.

M. Lee: I just wanted to ask, as a follow on to that question…. The massive increase from $5,000 to $16,000. Can I ask the Attorney General: what are the components of or the reasons for that increase?

Hon. D. Eby: These are driven by decisions by the courts. The escalation in minor injury pain and suffering awards has been dramatically and significantly different than the increase in pain and suffering awards for catastrophic injuries.

M. Lee: With that being set, in terms of how that’s determined, beyond $16,000…. Have there been other escalations beyond minor injuries, when we go to the next level of injury type? Has there been a recategorization of minor injuries into other types of injuries?

Hon. D. Eby: The average bodily injury claim paid out for non-minor injury, according to the Ernst and Young report, was $38,014 in 2000 and $48,078 in 2016, an increase of 26.5 percent. I think that provides the member with the comparison point.

[2:10 p.m.]

Staff also note that British Columbia now pays out more for minor injury claims than for serious injury claims or non–minor injury claims, 20 percent versus 17 percent respectively, and that we are an outlier in doing so in Canada because of our system as it’s currently constructed.

M. Lee: Just to clarify, the outlier is that we’re paying out somewhere between 20 percent and 17 percent higher than other provinces? Is that how I’m hearing this?

Hon. D. Eby: We’re an outlier in that more of our premium dollars for insurance go to pay people with minor injuries than to people with non-minor injuries.

M. Lee: Just in terms of minor injury claims themselves, has been there a change in terms of how many are being classified as minor injuries versus something that’s non-minor?

Hon. D. Eby: There’s no classification right now. This bill proposes to establish that classification both by legislation and through regulation-making power.

M. Lee: Just referring to the current situation in terms of looking at costs, we’re talking about, historically, going from $5,000 to $16,000 and the increase in terms of non-minor injuries, the category that’s gone from $38,000 to $48,000. I presume that that next category is the next level, going outside of severity in terms of going from minor injury to some other level of severity.

If that’s the case, I’m wondering, and I’m asking: has there been an increase in minor injuries that are being viewed to be non-minor injuries?

Hon. D. Eby: Non-minor injuries, according to the Ernst and Young report, are everything else that is not a minor injury. I’m trying to get at the member’s question here and provide a useful answer.

There was an issue where injuries that ICBC believed to be more minor in nature and had assigned an apportioned value for those specific files at a certain level…. They re-examined. Over a length of time, they realized that they had not apportioned enough money to pay out those claims as they are required to do in setting their projections. So their costs were higher than they expected on some of these files. That may be what the member is addressing.

Certainly, there has been, recently, a re-evaluation of various files by ICBC based on projections of anticipated cost to ICBC, where more minor injuries — as they initially presented, or as ICBC initially understood them to be — were then revalued later.

It’s important to understand that when someone calls ICBC, and they’re in an accident, and they initiate a claim, there may be a period of radio silence for a year or more. They have up to two years to bring a claim. This makes it very difficult for ICBC to track the claims, to know what’s happening with the claims, what’s happening with the costs during that period. They set an initial value of the claim when the file is opened, but that number may be out of date, and it may not be an accurate reflection of the actual cost of the claim.

If that’s what the member means, yes, ICBC has done a full file review of older files to give us a concrete answer about exactly their financial situation is. Maybe that’s what the member is addressing, but it has nothing to do with this part 7, “Minor Injuries,” section.

M. Lee: I appreciate that. I believe that this line of inquiry is relevant to this section of the bill because we’re talking about minor injury claims and how they’re determined, how they’re defined, the scope of it, the extent, the dollar limits that government would make available in terms of the minor injury cap, of course.

What the Attorney General is referring to is what I was wondering about in terms of what we understand to be a reclassification. I think it gives a sense to this House of the scope and nature of these types of reclassifications. If I can ask the Attorney General: what was the number of minor injury cases that were reclassified in this manner?

Hon. D. Eby: There are three different minor injury terms that we’re bandying about here, so it’s important to define our terms. First of all, there’s the minor injury definition that’s in the legislation that’s in front of us right now. Secondly, there’s the minor injury definition that was used by Ernst and Young in identifying trends in the work that they did for the previous government. The third is my description of what happened at ICBC in relation to what initially appeared to be more minor injuries, then becoming more serious. They’re all distinct.

[2:15 p.m.]

The statutory definition that’s in front of us is very specific about what our intention is with respect to defining minor injuries. As to the Ernst and Young definition, I have to say — with due respect to the previous government and the terms of reference that were set out there — it’s not quite as clear what they were using, about minor injuries, but it’s still very useful for understanding the trend lines around minor injuries and serious injuries.

With respect to what I was talking about, I was talking about claims that initially presented and appeared to be a lower cost, then ended up being a much higher cost for ICBC — a more minor or a smaller claim in value becoming a more expensive claim because the person was more severely injured. I hope that that clears things up for the member.

As for institutional data about the number of claims that were revalued, how significant that was, the total change in the appraisal of those files, and so on, again, I would refer the member to estimates.

M. Lee: I think I just heard the last part of that answer. Maybe you could just repeat the last part, if you could, please.

Hon. D. Eby: I was saying that I would encourage the member to pursue this in estimates, because there are three different categories that we’re talking about. The staff here are the experts in the legal definition that’s in front of us here, and the staff that will be at estimates are experts in the revaluation of files after ICBC did the review to ensure that government had an actual understanding of their financial picture. The number of files, the change in the anticipated cost to ICBC of those files, all those things — we can canvass in estimates. I’ll have the right staff there for that.

M. Lee: Well, thank you for that.

Let me just ask this, then, in terms of this discussion around the reclassification of what ICBC had first evaluated to be a lower-cost claim to now something that is having a higher-cost claim. In the backdrop of considering minor injuries and how this will be assessed, does the Attorney General believe that ICBC has the necessary capability to determine this? Given that there was….

Again, we don’t know the exact number of claims that were reclassified in this manner. It strikes me that the government is proposing to define minor injuries — admittedly in a different way, as the Attorney General has just outlined — the point being that we have a situation where the government is saying to British Columbians that claims of lesser amounts have been reclassified into larger amounts. That’s having an impact, as I understand it, on this so-called $1-billion-loss situation for ICBC.

I’d like to understand what level of confidence the Attorney General has in ICBC’s ability to assess minor injury claims.

Hon. D. Eby: There are a number of safeguards in place, and we passed a bill relating to one of them, which is on the civil resolution tribunal. If someone has a dispute about whether or not their injury falls within the statutory definition that’s in front of the House, they can go to the civil resolution tribunal, with or without a lawyer, and dispute that. They are welcome to do that. In fact, the system is set up to make it easier, faster and more efficient than before, to resolve that type of dispute.

It’s important for the member to understand that until this definition passes, there is no such thing as a minor injury definition. It doesn’t exist in law. It’s not used by ICBC. All injuries are treated equally. The issue is the attempt to place a value on a file and to understand how much that file is going to cost the corporation. That was the issue previously.

Whether or not somebody fits within the statutory definition that’s in front of us here today in the House is not a process that is engaged in by adjusters or anybody else. With respect to a dispute that someone might have with an ICBC adjuster about whether or not they have a minor injury, there’s an independent dispute resolution process through the civil resolution tribunal.

A. Weaver: I have a number of questions here. It will give the members opposite a little break. I think we’re going to be canvassing section 29 for a fair bit. They can compose their thoughts.

[2:20 p.m.]

I have four quick questions with respect to the issue of injuries here. Section 29 — in 101 here — defines three types of issues. One is minor injury. It also defines permanent serious disfigurement and serious impairment.

My understanding of these is, perhaps, consistent with the minister’s, but I do note that there is an awful lot of confusion out there, in the general realm, with respect to the intentions of the minister with bringing in this legislation. So I’d like to pose a couple of specific examples to determine whether or not they would be covered under “minor injury” or whether, in fact, they would be eligible for further litigation down the road.

The one that’s been the most common is the concern that’s expressed with respect to psychological or psychiatric conditions. Now, my understanding of this…. I’m hoping the minister can correct me if I’m wrong.

Let us suppose we have two individuals. The first individual is in a car crash. That first individual gets very depressed after the car crash. It’s been declared by the medical practice that that depression has arisen as a direct consequence of that car crash. It was a depression-and-anxiety issue that responded well to medication, and six months later the person bounced back and actually was able to continue forward. That’s case 1. Person No. 2 is the same person who enters into a much, much deeper depression, perhaps with PTSD, and a year and half later they still have not been able to recover.

My question to the minister is: how would both of those individuals be treated in light of the definitions of “minor injury” and “serious impairment”?

Hon. D. Eby: The second one is easier, in that it is definitely not within the cap. On the first one, there is a definition of “minor injury” that has two parts. The first part of the definition of “minor injury” is a negative definition. It says that it’s an injury that “does not result in a serious impairment or a permanent serious disfigurement.” So if it results in a serious impairment and it’s a psychiatric injury, then it’s out of the definition of “minor injury.”

If it doesn’t result in a serious impairment and it’s a psychiatric injury or another type of injury that is within the second part of the definition, then it would fall within the minor injury definition. The other types of injuries are abrasions, contusions, lacerations, sprains or strains, pain syndrome — we talked about a psychological or psychiatric condition — or a prescribed injury or class of injury captured in the regulations.

The question of whether or not it’s a serious impairment is also a defined term. A “serious impairment” is an impairment that “(a) is not resolved within 12 months, or another prescribed period,” by regulation, “if any, after the date of an accident, and (b) meets prescribed criteria,” by regulation. You’ll see there are two pieces to this, and there is space, within regulation, for additional definition.

I’ve posted a paper on the Ministry of Attorney General website about our intentions related to the “prescribed criteria” around “minor injury.” It might assist the member to know that next week there is a meeting with the Doctors of B.C. — the B.C. Psychological Association has also been invited — to assist us in determining how the regulations could narrow the psychological or psychiatric conditions even further than is already the case for the current minor injury scenario.

A. Weaver: Another two examples that I’d like to give. Let’s suppose that there is somebody who was driving somewhat excessively over the speed limit. Maybe they didn’t get caught, but there was some inkling that that person was at fault. That person gets into an accident with two cars. In the one car, you have an individual who has brain damage and becomes a quadriplegic. They’re seeking pain and suffering, etc., and also legal process, as a result of this.

[2:25 p.m.]

In the second person, you have a few broken bones that lead to some chronic issues. Perhaps it’s a broken hip, and there are some chronic pain issues that last beyond a year. They don’t just last a few months. They last beyond a year. How would both of those be treated?

Again, I’m seeking clarification for the purpose of communicating the intent of this section to a broader audience. How would both of those individuals be treated under the classification of “minor injury”? I suspect the brain damage and quadriplegic doesn’t apply, but perhaps the broken bones, where you actually lead to a chronic condition that lasts — say chronic hip arthritis or something — after an accident. If the minister could expand on that.

Hon. D. Eby: No individuals with brain injuries or individuals with broken bones are subject to the limit on pain and suffering awards or the minor injury definition.

A. Weaver: Then let’s suppose the bone isn’t broken. In fact, you have a sprain with a cut, and that cut gets infected. You get a flesh-eating disease response that doesn’t leave you permanently disfigured, but it leads to a substantive, long-term injury. That infection gets into your bone. You get chronic arthritis. How would that person be treated in this example?

Hon. D. Eby: If it meets the definition of “serious impairment” — so it’s beyond 12 months and the prescribed conditions — then there would be no cap. In addition, I guess it depends on the laceration that resulted in the flesh-eating disease or the impact on the individual. A permanent, serious disfigurement of the claimant would also remove it from the minor injury definition.

A. Weaver: My final question. Let’s suppose you have a drunk driver who’s driving along and runs into a number of people. Some people get serious injuries that are very extensive, a couple of other people minor injuries, as defined here, and one person has a psychological disorder as a result. How would the issue of these three different classes of people be treated under these definitions when a drunk driver or somebody texting was involved?

Hon. D. Eby: Each individual would be assessed based on their own injuries, whether or not they fell within the definition of “minor injury” or not.

As for the driver, anyone that was driving dangerously, there are Criminal Code and Motor Vehicle Act provisions relating to that — insurance consequences, potential jail time, and so on — that flow from that, if they were engaging in dangerous conduct while they were driving — drinking and driving, and so on.

J. Yap: I’d like to get back to who the minister consulted in coming to the specific cap. I heard the minister say that the Doctors of B.C. would be consulted soon. But in regards to the cap and the amount, did the minister consult the B.C. Medical Association?

Hon. D. Eby: We had a huge number of stakeholder meetings. I remember the B.C. Coalition of People with Disabilities, the injured motorcyclists association, physiotherapists, individuals injured in car accidents.

What I’d like to do is…. We don’t have a list right in front of us, but I will endeavour to get the member a list of the groups that participated in our stakeholder meetings where we discussed the cap.

J. Yap: I appreciate that. Perhaps the minister might be able to answer this. We look forward to the list with the comprehensive listing of those consulted on capping and the potential amount. Would the minister confirm for us that medical groups were consulted as part of this consultation?

[2:30 p.m.]

Hon. D. Eby: I can advise the member that Doctors of B.C. has been involved in our conversations from a very early stage. What I’d like to do is…. There were a number of groups that signed non-disclosure agreements related to stakeholder engagements, so it might be that the member thought we didn’t talk to anyone, and that may be why.

What I’ll do is I’ll endeavour to get the member a list of those organizations as quickly as we can.

J. Yap: Thank you. I appreciate that.

With regard to the amount, $5,500, the minister has said that that was arrived at after comparing to other jurisdictions and looking at what could be done given the situation. So $5,500 is what the minister has said it would be. Can the minister commit, since this amount can be changed by regulation, that this amount will be the cap and it will not go below this amount?

[R. Chouhan in the chair.]

Hon. D. Eby: This amount, $5,500, is the government’s intention. It will be linked to inflation, so the number will only be going up from there.

J. Yap: The minister had said a few times, earlier, that as a result of these changes — I believe, primarily, the change to capping what will be defined as minor injuries and the savings expected from that — there would be a substantive financial savings to the corporation.

Can the minister confirm: is the $1 billion that he talked about part of the savings from capping minor injuries?

Hon. D. Eby: It would be helpful for the member to think of the savings that are projected as being a global number that’s connected to a couple of things.

One is definitely a limit on pain and suffering awards, the growing and escalating pain and suffering awards, to $5,500. The second is the direction of minor injuries out of B.C. Supreme Court into a more efficient tribunal process, at the civil resolution tribunal. The third is the increase in benefits. Then, after all of those things happen, the net savings are projected to be $1 billion for ICBC.

J. Yap: It sounds like the minister was provided with analyses or modelling that showed the savings that could be achieved from some of these proposals, including capping so-called minor injuries to be defined and the increase in health benefits and the transfer of cases to the tribunal.

Is that the case — that there was modelling or analyses that was done on behalf of the minister?

Hon. D. Eby: I can assure the member that yes, there were projections done on this. As far as the cap goes, the member can do his own projections and understand that for every $1,000 in increase on the cap limit above $4,000, the cost for each $1,000 increase is $30 million, or roughly 1 percentage point of insurance premium for British Columbians. So he can do that as far as the impact of changes in the cap.

[2:35 p.m.]

J. Yap: Will the minister be able to, at the appropriate time, release the modelling that was done that assisted in this decision?

Hon. D. Eby: It’s a bit challenging for us here, given that these are legal staff and not actuarial staff or financial staff at ICBC.

What I am going to do is make sure that ICBC has the member’s request for that, and at estimates, I’ll provide him with as much information and paperwork as we feel we can around the modelling and the projections for ICBC’s finances.

J. Yap: Earlier there was some discussion in regards to the savings achieved around the country — other jurisdictions that have introduced these. Can the minister tell the House, specifically, if caps have led to lower insurance premiums in those jurisdictions?

Hon. D. Eby: I can tell the member that bodily injury costs in the provinces that have capped minor injury claims continue to be lower than levels in 2000, with decreases ranging from 10 percent to as much as nearly 60 percent in one of the provinces. By comparison, B.C.’s bodily injury loss costs, where there was no limit on minor injury pain and suffering awards, have increased nearly 85 percent over the same period.

J. Yap: In respect to administering this new system — when the legislation is passed, and we now live in a world with the new definition of minor injuries and the caps — how many additional staff or FTEs does the minister expect, and the cost to deal with this?

Hon. D. Eby: I can provide a broad picture for the member, as I have, which is that there will be a shift away from staff focused on litigation to staff related to administration of claims. As far as specifics, I’d appreciate if the member understood that having the staff that are experts in ICBC’s human resources and financial picture at the estimates process would be the best place to get into detail.

J. Yap: The minister has made reference to savings that would be achieved from this move to caps on minor injuries and the other initiatives — the tribunal, the providing increased health benefits. Will these savings that would be achieved be shared with ICBC ratepayers?

Hon. D. Eby: Our goal is to avoid a $400-per-driver rate increase. The answer is yes. If we’re successful, then we won’t have to do that. So the savings will be shared in that way.

Beyond that, we hope to provide savings to good drivers through our rate design program that we’re undertaking. That’s our goal in this bill, in two parts. One is in the enabling piece around the rate design process, and the other is in relation to this minor injury and the civil resolution tribunal bill that has passed.

J. Yap: I appreciate the minister indulging me here. I’m hearing his reference to avoiding a $400 increase. I’m sure he’s referring to an average. But the minister’s also referred to the fact that bad drivers should pay more and good drivers, pay less. Does he expect that introducing these caps on minor injuries and all the other initiatives could lead to a reduction in rates for good drivers?

[2:40 p.m.]

Hon. D. Eby: This bill reflects one part of the multiple initiatives that are underway. We had a third-party business review of ICBC that projected efficiencies inside the corporation, with $57 million as the potential savings, that we currently are implementing.

We have road safety initiatives that we’re implementing to decrease the number of accidents, especially those associated with distracted driving. We have other initiatives related to dangerous intersections, with our red-light cameras initiative.

All of these initiatives are aimed at reducing costs at ICBC. Our goal, throughout this whole process, has been to avoid an astronomical rate increase for British Columbians. The member is right — an average of $400 per driver to close the gap between what’s being paid out and what’s being taken in at ICBC. That’s our goal, and that’s what we’re working towards.

J. Yap: So how can the minister be sure that these changes, after they’re implemented, will not, in fact, lead to an increase in rates for British Columbians?

Hon. D. Eby: Well, I can be sure that this isn’t going to lead to an increase in costs for ICBC. These are all measures that are going to reduce some very obvious cost drivers at ICBC. But given the stated intent of the Trial Lawyer’s Association to challenge this legislation, to attempt to get people around the cap, the behaviour of plaintiff counsel, it’s very difficult to project accurate savings.

We do the best that we can to try to understand where this is going to go, based on the experience of every other jurisdiction in Canada that’s done this. We have an advantage in that we’re the last, if I can put a happy face on what is a very unhappy situation. So we are able to learn from the example of those other jurisdictions and try to make our definition as comprehensive as possible and also ensure that it doesn’t offend any constitutional prerogatives. We can do our best, and that is what we’re doing.

In addition, we’re not entirely reliant on this. We have initiatives within ICBC to reduce costs internally, a $57 million initiative over at ICBC. We have initiatives around road safety.

We have initiatives with material damage suppliers. Material damage is automotive body repair shops. For example, we’re doing work on windshield costs right now, where ICBC will no longer pay to replace moldings that don’t need to be replaced and will not pay a cost beyond the original manufacturer’s cost for replacing windshields.

These are initiatives that are underway. There are a number of initiatives underway. We’re not reliant on any one initiative to get ICBC back on track. It is a multi-pronged approach, because we know that there will be a movement on all of these initiatives in both directions.

J. Yap: I appreciate the minister listing a few of the many initiatives, I’m sure, that are underway, which, coupled with the proposed cap on minor injuries collectively will lead to savings. Let’s hypothetically project and give the minister the benefit of the doubt that the savings will be achieved. What does the government plan to do with these savings?

Hon. D. Eby: Well, there has been a practice in the past of governments taking money out of ICBC, which, in part, is why we’re here in this situation today — $1 billion taken out of ICBC’s reserves by previous governments. We will not be doing that. The money will be staying in ICBC.

If we find ourselves in the remarkable and fortunate situation of ICBC being in a surplus situation, those savings will be returned to drivers through reduced rates. I sure hope we find ourselves there. The goal currently is to avoid astronomical rate increases for British Columbians, and that’s where we’re trying to get.

I have a comprehensive answer for the member’s earlier question on who was consulted with about the possibility of a cap and the potential range of a cap.

[2:45 p.m.]

We consulted with Doctors of B.C., the Physiotherapy Association, the Registered Massage Therapists of B.C., the Association of Traditional Chinese Medicine, the B.C. Psychological Association, the B.C. Association of Kinesiologists, the Canadian Association of Occupational Therapists and the B.C. Association of Clinical Counsellors, the B.C. Chiropractic Association, disability advocates, the Association for Injured Motorcyclists, the Fraser Valley Brain Injury Association, the Disability Alliance of B.C., the Rick Hansen Institute, the Campbell River brain injury association, Brain Trust Canada, the Planned Lifetime Advocacy Network, CONNECT, Brainstreams, Spinal Cord Injury B.C. and the G.F. Strong Centre.

That’s the list that staff has provided me of groups that were consulted about that.

J. Yap: I appreciate that listing of those consulted. I was listening intently, but I did not hear that the nurses of British Columbia were consulted. I’m wondering why.

Hon. D. Eby: Fair point. I’ll check with staff about that and see if we can reach out to the nurses to see if they have some feedback for us.

J. Yap: Getting back to the hoped-for savings that will be achieved from all of these initiatives, the list which the minister shared with the House, and the proposed cap on minor injuries to be defined. Can the minister commit today — he used the word remarkable position — that if we see those savings, those savings will be passed on to British Columbians?

Hon. D. Eby: These days, that sounds a bit like counting chickens before they’re even laid in an egg, let alone before they’re hatched. But I can assure the member that government has absolutely no plans to do what the previous government did, which was take money out of ICBC’s reserves. The savings will be returned to drivers.

J. Yap: Can the minister tell us who created the definitions for minor injuries, which we see in the legislation? Was it his office, his ministry, or ICBC?

Hon. D. Eby: This was drafted by Ministry of Attorney General legislative drafters. The definitions were created in consultation with other jurisdictions that have similar caps on minor injuries, to identify their experience. Consultation is not the right word — by looking at the experience of other jurisdictions with similar definitions.

It was done by Ministry of Attorney General staff and in consultation with ICBC and actuaries at ICBC to ensure that the definition, first of all, was appropriate, and second of all, achieved the intended aims, which were savings for drivers in British Columbia.

J. Yap: The minister referred earlier to the fact that, presently, no definition exists for minor injury — certainly within ICBC. So this is something really new. Did ICBC provide the government with input into the legal definition of what should constitute a minor injury in British Columbia?

Hon. D. Eby: Take this with a grain of salt, because these provinces may have acted earlier. These may be revised definitions. But at least as early as 2004 for Alberta, 2010 for Nova Scotia, 2010 for Ontario, 2013 for New Brunswick and 2014 for Prince Edward Island, there have been definitions of minor injuries. So the most recent jurisdiction is four years ago, according to those numbers. Staff are nodding that those were appropriate years.

This isn’t something that’s new. Alberta’s had this in place for 14 years. We have lots of experience in those jurisdictions to draw from. So I disagree with the member’s premise that this is something new or innovative. This is something that was recommended in B.C. as early as 2014, as we know of.

J. Yap: Does the minister not believe that this fairly broad definition of what a minor injury is will create fear amongst victims that he, the minister, or ICBC can arbitrarily overrule victims and medical professionals?

Hon. D. Eby: There’s a lot in that question.

[2:50 p.m.]

What I can advise the member is British Columbians can have confidence, once these changes are implemented, that if they get in an accident, they’ll actually get the cost of their out-of-pocket expense for the physiotherapist they need, for the counsellor they need, for the care they need; and something approaching reality for their lost wages, something approaching reality for the expenses of being rendered quadriplegic in a car accident.

I think it unfortunate that a number of people who were injured before these reforms found out that their benefits were limited to amounts set in 1993. If more British Columbians had known that, they would have been very full of fear that they might be involved in an accident where they would be reliant on these 1993-level benefits, because they are not enough to get the care that is needed. I think we’re actually moving to address this in a very serious way.

I can tell the member, also, that I get letters from British Columbians across the province with very real concerns that they can’t afford a significant increase in car insurance. They rely on their car for work and for family commitments, and if there’s a significant increase in the cost of their car insurance, they’re going to be in real jeopardy.

I would say that that is definitely where the fear is, and I would disagree very strongly with the member’s suggestion that somehow I’m going to be responsible for administering these claims. People go to their family physicians, to their existing care providers. That is the evidence that will go in front of the civil resolution tribunal to resolve disputes. Any dispute with ICBC won’t be resolved by me and my office, with a big stack of injury claims. It will be resolved in front of the civil resolution tribunal, an independent tribunal here in British Columbia.

M. Lee: Just as a follow-up to that response, just to clarify again. When we were talking earlier today about the benefits side, it’s the $6 million increase, what the Attorney General described in terms of those who need to have greater than $150,000 of lifetime benefit coverage — those who are quadriplegic, unfortunately, from an accident, for example.

In terms of the other benefits, we understood that the actual increase from that is $200 million. Has the Attorney General considered just putting in place what I think, generally, we would support — the increase in benefits, in the way that has been proposed, and not imposing a minor injury cap?

Hon. D. Eby: It’s a frustrating question, because it means the member has not been listening or paying attention to the news or has any understanding of ICBC’s financial situation. I cannot believe that that’s the case, so that’s why it’s a frustrating question.

The member surely knows that ICBC’s in financial trouble. If he doesn’t, he can just check with the member down the way from him, the former Finance Minister, about the situation in ICBC. ICBC is in a very dire financial situation — $1 billion losses.

To suggest that, without addressing the underlying fundamentals that are driving these massive losses at ICBC, we would then increase benefits, which would actually increase that deficit even further, without taking the necessary steps to say: “Look, these pain and suffering awards are getting out of control….” We’ve got to focus on getting people better. We’ve got to focus on getting these claims out of multi-year processes in B.C. Supreme Court with multiple experts for minor injury. We’ve got to have a proportionate system.

I mean, the basis of the question is so disconnected from the reality of the situation that it’s very difficult to respond to it.

M. Lee: Well, we’ve been having a great conversation throughout the life of the committee on this particular bill, and at various junctures, my colleague the member for Richmond-Steveston and I have been asking questions which are, in many cases, relating to the financials of ICBC — the costing and the savings — and in particular, what we were talking about an hour ago, in terms of the reclassification of lower claims to higher-value claims.

We are hamstrung in this committee process without the benefit of a full understanding. I’m clearly aware of what the government has been saying for the last nine months, and as we just heard, the Attorney General, through the ministry responsible for ICBC, is considering other product reform.

I’m merely asking the question: given my concern regarding ICBC’s capacity to assess minor injuries, has it been a consideration, when we talk about benefits, separating out the benefit of increasing benefits for claimants from a minor injury cap? That is merely what I’m asking.

[2:55 p.m.]

Hon. D. Eby: I’ll give the member the benefit of the doubt and say I don’t consider the 1993 benefit levels implement being delivered in 2018 to be any less of a deficit at ICBC than the $1 billion operating deficit. It is just as much a deficit. It absolutely needs to be addressed just as much as the $1 billion deficit. But if the core of the member’s question is, “Can you increase these benefits without doing these other reforms?” the simple answer is no, and that’s that.

J. Yap: I’d like to continue where I was, talking to the minister in terms of…. We talked about the list, and I appreciate that he will provide that. Now I’d like to go back to when the bill was first introduced, on April 24. The minister said, when he introduced this bill: “We couldn’t have done it without the assistance of ICBC.” He went on to say: “They were instrumental in the process.” How was ICBC instrumental in the process?

Hon. D. Eby: I think it’s instructive to recall that when the previous government did a business audit of ICBC in 2014, they cut seven pages out before providing it to ICBC. Why would they do that? It’s a good question. I don’t know the answer to it.

What I know is that there are a number of very talented people at ICBC, very thoughtful people that, for a while, in my opinion, knew that there was very serious trouble at ICBC, and the public in British Columbia did not know that. I am very grateful to the people at ICBC who have worked with Ministry of Attorney General staff and my office in assisting us in modelling different scenarios, assisting us in understanding the implications of different policy changes, because they have the data, because they have the systems, and so on.

Inherent in the member’s question is a lack of trust in ICBC — that they’re trying to pull a fast one. I don’t want to put words in the member’s mouth. When the member says that, that’s what I hear. Just to address that. In terms of the finances, I am as concerned as anyone who said: “Oh my god. How can it be that before the election, the projected deficit at ICBC was $11 million” — they were projected to make a profit this year, if you can believe that — “and then, all of a sudden, they’re losing $1 billion? How does that happen?”

I asked that exact question myself, and ICBC provided some insight about how that happened. I said: “You know what? We need to have a review of how that happened.” So we brought in a third-party business firm, PwC, to do a review of ICBC’s projections of the numbers. I then said: “Well, they’re actually the auditors of ICBC, so we need someone that’s even independent of that.” We have another review of that financial review happening.

I can tell the member the unhappy news, which was very unhappy to me when it was delivered to me. The loss is real. The loss on the books, which means dollar-for-dollar it comes off of social programs for British Columbians, of $900 million last fiscal period and $1.2 billion projected for this fiscal period is real.

It is unhappy news, but I am grateful for the assistance of ICBC in helping us understand the consequences of the proposals that we’re bringing forward here to reform insurance to ensure that we can actually deliver two things. One is a financially stable ICBC that can deliver affordable insurance to British Columbians. The second is an ICBC that can deliver benefits to British Columbians at levels that we deem, as a government, to be appropriate for people’s injuries. The third is to deliver timely justice for people that are involved in a collision so they can get on with their lives.

We had a number of priorities here. I think we’re achieving them. I’ll say it again. We couldn’t have done it without the assistance of ICBC. But to the member’s question and the implication in it, we were not dependent on it, and we continue to scrutinize ICBC’s operations, including with a third-party business review that identified $57 million in savings inside of ICBC.

J. Yap: Can the minister confirm if ICBC also assisted in the creation of the definition of “minor injury”?

[3:00 p.m.]

Hon. D. Eby: There are three people sitting with me here. You have the executive director of Crowns from the Ministry of Attorney General, you have counsel from the Ministry of Attorney General, and you have the chief legal officer for ICBC. They are assisting me in answering the members’ questions, and I’m here as well.

This is an accurate reflection of the team effort of putting this together: technical assistance and actuarial information from ICBC, legal expertise and knowledge from Ministry of Attorney General, and organizational project management experience from the executive director of Crowns and Crown agencies. This is a reflection of how the bill was prepared. And of course, I’m here too.

J. Yap: With that, can the minister share with the House the intention of the wording in the bill — “an injury in a prescribed…class of injury,” even if “chronic.” What injuries would fall under this definition?

Hon. D. Eby: In 2015, there was a case in Alberta called McLean v. Parmar. The reference is A.J. No. 214 Alberta Court of Queen’s Bench. In that case, the court found that pain lasting longer than three months was defined as “chronic pain” and was therefore no longer in Alberta’s definition.

Alberta had a similar issue in relation to something called TMJ, which is a joint issue in the jaw, which was not contained in their definition. The combination of the 2012 case related to TMJ — which made Alberta become the capital for TMJ injuries in North America — and the definition of “chronic pain” as “any pain lasting longer than three months” meant that their definition of “minor injury” and the intent behind establishing it was badly compromised.

They weren’t able to achieve the goal that we have here as well, which is to reduce the process around more minor injuries and to put a limit on escalating pain and suffering awards — not out-of-pocket awards, not health care costs, but on these pain and suffering awards.

Our intent was to learn from Alberta’s example, what they’d seen in their jurisdiction, so that we didn’t face the same issue. That is why the member finds that definition in relation to chronic pain. It’s important to note, though, that there is a very specific “serious impairment” definition that kicks serious ongoing injuries out of the minor injury definition, including chronic pain if it meets the “serious impairment” definition, is not resolved within 12 months and has that significant impact on people’s daily activities.

M. Lee: I appreciate the reference to the Alberta case. How has Alberta changed this legislation in view of that case?

Hon. D. Eby: They haven’t. But, you know, there are advocates out there who say: “Enough with ICBC. We should privatize car insurance in British Columbia.” I tell them that even if they’re enthusiasts for privatization, the first thing that would happen — that the private insurance companies would do in British Columbia…. They’d show up at the door of the minister responsible for insurance law in B.C., and they’d ask for these reforms that are happening here. Because they know, like we know, that it’s not sustainable the way the system is going right now.

I say that because although Alberta has not changed their law, they are being lobbied by one of the federal insurance lobby groups to update their definition to include these conditions because of the erosion in savings that were intended by having a minor injury stream in that province as well.

[3:05 p.m.]

M. Lee: Just coming back to the word “chronic,” that, at the outset of this definition, is one of the key thresholds. Just going at the word “chronic,” though, doesn’t that suggest something that could likely last more than 12 months?

Hon. D. Eby: The issue is whether it results in serious impairment that lasts for longer than 12 months. If it does, then it’s not a minor injury.

M. Lee: I’m only suggesting that there are words in the minor injury definition that, just from the outset, suggest to individuals who have certain types of injuries as the result of an accident that they don’t have a minor injury, or that they do have a minor injury but something that could potentially last more than 12 months. Some chronic condition — by definition, I would have thought — is a condition that could last more than 12 months.

Hon. D. Eby: Yes, it could.

J. Yap: Getting back to the definition — and I appreciate the minister’s response earlier — does the minister not think that this wording is somewhat vague?

Hon. D. Eby: This is the most comprehensive definition of minor injury in the country. There are additional portions that are left to regulation because we recognized the experience in other jurisdictions where their definition has been eroded. They forgot to include a jaw strain in their definition, which caused the entire claim to be kicked out of the minor injury regime in Alberta. We have a regulation-making power here that allows us to update in order to ensure that the definition and the intent behind the minor injury section is achieved.

J. Yap: I wonder: does the minister not believe that it gives a lot of latitude to ICBC to determine what is minor and what is major?

Hon. D. Eby: The regulations are set by the Lieutenant-Governor-in-Council, which is cabinet, not by ICBC.

J. Yap: I understand that, but ICBC will be — on behalf of the province, on behalf of the executive council — out on the front lines working with claimants and having to make that determination. Does it not give those making the determination, ICBC, the latitude to determine what is minor and what is major?

Hon. D. Eby: The situation today is that ICBC adjusters evaluate claims and make determinations about the value of claims. Any dispute about that goes to B.C. Supreme Court, a multi-year process, in many cases, with multiple experts on both sides — a very expensive process.

We’ve said that minor injuries, instead, where there’s a dispute, now don’t go to B.C. Supreme Court. You go to the civil resolution tribunal, which will be faster and more efficient. The intent behind that is to realize some savings in the process and administration. We think that that will be an effective dispute resolution system for when people disagree with an ICBC adjuster about the value of their claim, whether or not it’s a minor injury or accident benefits that they believe they’re entitled to but they’re not receiving.

J. Yap: What’s the minister’s intent? What is the minister trying to do with this wording, which I referred to earlier: an injury in a prescribed class of injury, even if chronic?

Hon. D. Eby: In Alberta, there was a court case where somebody sued and said that they had pain that lasted for longer than three months. The court agreed with their submission that because the pain lasted for longer than three months, it was chronic pain. Because it was chronic pain, it was not in the definition of minor injury, and therefore the definition of minor injury and the intent of the Alberta Legislature in restricting process and pain and suffering awards around minor injuries was circumvented.

[3:10 p.m.]

Our intent here was to say that if you have chronic pain that results in a serious impairment, then that is not a minor injury. If you have chronic pain that does not result in serious impairment, then that, in combination with the definition of minor injury, may mean that you are subject to the minor injury process, which is the civil resolution tribunal.

There is a limit on the pain and suffering award but not a limit on the amount that you are able to recover for treatment to get better — physiotherapy, acupuncture, whatever it may be that will help you deal with your chronic pain. You’ll have access to additional benefits, a larger lifetime benefit, greater benefits for your lost wages.

I hope that helps the member understand why that’s there and what the intent is in relation to the words “chronic pain.”

M. Lee: Just in terms of chronic pain, what is the AG Ministry’s view on how long chronic pain syndrome typically lasts?

Hon. D. Eby: The issue that we face is that injuries manifest differently for different people. So pain syndrome and pain syndromes…. Not being a doctor and not having any doctors with me here in the Legislature right now, I can advise the member that it will be a case-by-case determination about whether the person’s pain syndrome results in serious impairment in terms of the minor injury definition.

M. Lee: When we go into “serious impairment” and match that up against pain syndrome then…. Perhaps we can just walk through that. There will be “prescribed criteria.” Are those prescribed criteria specific to an individual or a class of individuals?

Hon. D. Eby: The serious impairment relates to work, school, usual daily activities and a substantial interference with the individual’s ability to perform those daily tasks. We set that out in a paper on the Ministry of Attorney General website to respond to exactly the concern the member is raising about: “Okay, it says here it ‘meets prescribed criteria.’ What is that?”

The serious impairment evaluation is part of the definition of minor injury. It determines whether or not you fall within this category. That’s the import of it and the intent of government in relation to those prescribed criteria.

M. Lee: Just coming back at this, then. In terms of the “12 months, or another prescribed period” reference, why 12 months in the case of chronic pain syndrome?

Hon. D. Eby: The member will note that the definition of “serious impairment” in subsection (a) has “or another prescribed period.” So if for a particular type of injury or pain syndrome or something else, we find that 12 months is inappropriate, it could be modified to have a more appropriate time period, given what’s happening on the ground. There is flexibility here in the definition to be responsive to what’s happening.

J. Yap: Does the minister not think that by adding this sort of wording, these sweeping powers, he is perhaps treating everyone like they’re gaming the system and punishing those who are injured?

Hon. D. Eby: No, I flatly reject the member’s suggestion. Both in the terms of his question and in the idea that there are sweeping powers and on and on, I reject the whole thing.

J. Yap: Can the minister tell us why he included chronic psychological or psychiatric conditions as minor injuries, putting B.C. as the only jurisdiction to do this?

[3:15 p.m.]

Hon. D. Eby: Some psychological injuries are minor, and some fall outside the minor injury definition. It depends on the impact on the individual and the psychological injury. That’s why there is a definition here that is two parts — that the injury “does not result in a serious impairment” and “is one of the following” — and “serious impairment” is defined as well. So it depends on the injury.

M. Lee: Just working through that, then. When the initial claim occurs and there has been a determination that there is a minor injury — that it’s not non-minor, that it involves a psychological or psychiatric condition — but subsequent to that, there is a determination that there has been a serious impairment, is the Attorney General not concerned about the stigma, the consideration of the individual involved, for that first 12-month period, where they’re suffering from a psychological or psychiatric condition but it hasn’t yet gotten to the stage of being a serious impairment?

Is that how we’re treating people who suffer from a mental injury and have a psychological or psychiatric condition over the first 12 months? Is that the intention of this government?

Hon. D. Eby: Imagine a situation where someone is in an accident and it results in a serious psychological or psychiatric condition. They are seriously impaired. They meet the definition of “serious impairment.” Nobody is telling that person that they are not seriously impaired or that they have a minor injury.

At that point, it’s just uncertain. If it resolves within 12 months, then it would be considered a more minor injury — devastating for the individual, but a more minor injury. If it doesn’t resolve within 12 months, then it is kicked out of the minor injury definition.

It’s important to know that under the reforms, the person in that situation would be receiving additional benefits that were not previously available — namely, counselling. An individual that is in a single-car accident that results in a serious psychological or psychiatric condition currently does not have access to counselling as a paid service. After these reforms, they will have access to counselling.

In fact, the reforms that we’re proposing recognize that people need access to counselling sometimes, after an accident, to deal with the psychological injury. There is no suggestion that it is a minor injury or that it falls within the minor injury definition until it’s clear about whether or not it’s resolved within 12 months.

M. Lee: Having said that, it is putting on the same level a psychological and psychiatric condition as being a minor injury — versus a broken toe, another broken bone, which is not a minor injury. Is the government not concerned about the signal in the way that that treats people who have those sorts of psychological conditions?

Hon. D. Eby: It might reassure the member to know something that I said before, which is that we’re currently consulting with the medical community about narrowing that definition, by regulation, to ensure that it reflects appropriately the medical community’s understanding of what should and shouldn’t be captured.

M. Lee: I appreciate that. To the Attorney General: you mentioned earlier that there were various groups that had been consulted in the list. One of them, I believe, was the B.C. Psychological Association. Have there been others in the initial consultation process that have made comment on this inclusion of this condition?

Hon. D. Eby: We’re engaging in those consultations right now in relation to refining the definition of “a psychological or psychiatric condition” for the purposes of the minor injury definition.

J. Yap: Can the minister tell us what changed from February 6, when his own news release stated: “The new legal definition will include things like sprains, strains, mild whiplash, cuts and bruises, anxiety and stress from a crash. It does not include broken bones, brain injuries, concussions or other more serious impairments.”

[3:20 p.m.]

Why did this list change on April 24? It changed to this. “Abrasions, contusions, lacerations, sprains and strains, pain syndrome, psychological and psychiatric conditions or an injury in a prescribed class of injury, even if chronic,” while adding the terms “will be further defined in regulation over the coming months.” Can the minister explain the discrepancy?

Hon. D. Eby: Sure. I’ll point out the obvious, that one’s a news release and one is the statute. Aside from the obvious, I assume that the member….

We’re following on the discussion about psychological or psychiatric conditions. Anxiety and stress, as were included in the original press release, are examples of psychological or psychiatric conditions that have been considered by courts previously in relation to injury claims.

There is no inconsistency there, if that’s what the member was suggesting.

J. Yap: Does the definition of minor injury include tears? If the tear cannot be seen or diagnosed right away, how would the minister and ICBC handle this?

Hon. D. Eby: I wonder if the member could provide some clarification about what exactly he’s referring to. If it’s an abrasion, a contusion, a laceration, a sprain or a strain, then the question would be whether or not it results in serious impairment. Beyond that, the member’s welcome to provide additional clarification for us about what he means by a tear.

J. Yap: Sure. If someone tears a labrum or an ACL as a result of a crash, will they be treated as minor injuries?

Hon. D. Eby: Its intention, with respect to sprains and strains, which I think is what the member is talking about, is an injury to one or more tendons or to one or more ligaments, or to both tendons and ligaments, including TMJ — that jaw injury I was telling you about — but excludes third-degree sprains, where all tendon fibres are torn away, requiring surgical intervention.

That’s where we’re headed. Maybe that’s what the member is talking about, in terms of tears. If it requires that surgical intervention because all the muscle fibres are torn, then that is not what we’re talking about here in the minor-injury definition.

J. Yap: Can the minister tell us if he has spoken with psychiatrists and psychologists regarding the inclusion of those conditions within the minor cap?

Hon. D. Eby: No, we wouldn’t talk to them about tears, if that’s what the member’s asking. If he’s asking about whether we’re consulting with them about psychological or psychiatric conditions, I think I’ve answered that a few times now. We have meetings, in fact, this week with Doctors of B.C., to which the B.C. Psychological Association has also been invited in terms of setting the regulations for that area.

J. Yap: Can the minister walk us through what he had in mind when including these afflictions under the minor cap? I mean the psychological and psychiatric.

Hon. D. Eby: I’ve answered that question a few times. There’s case law out of Alberta. There’s the concern, as the member cited from my own press release, around anxiety and stress resulting from a crash. These are some of the examples of what we were hoping to identify here in the minor-injury category.

J. Yap: This government has stated that mental health is a priority, but if I were looking at the definitions included in this bill, I would think otherwise. How can the minister square that circle for the public?

Hon. D. Eby: Under the previous administration, if you were in a car accident and you were suffering anxiety and stress from a car accident, you would not have access — or any other psychiatric or psychological condition — if you were in part 7 benefits, to a counsellor.

[3:25 p.m.]

The simple reform of providing accident benefits, to individuals, of counsellors, in part 7, is an indication that we take this seriously, that we think people need access to the resources they need to get better and that we will provide those resources to them to ensure they get better. It doesn’t matter whether their injury is physical or psychological.

M. Lee: Just in saying that, just to clarify again, we were speaking earlier about minor injury, including “a psychological or psychiatric condition.” For the first 12-month period — before we reach the timeline on “serious impairment,” where it’s not resolved in the 12 months — just to confirm: that individual would still be treated as if they had a minor injury. Is that correct?

Hon. D. Eby: They would be treated the exact same as anybody else with an injury. You only settle your claim once. If you had a serious impairment, you wouldn’t be settling it within the first 12 months, because there’d be a determination about whether it fell into the minor injury definition or not.

M. Lee: But how do you know at the outset whether you have a serious impairment?

Hon. D. Eby: You don’t, until you know whether or not it’s resolved within 12 months.

J. Yap: Getting back to psychological and psychiatric conditions, does the minister believe that depression is minor? Does he believe that anxiety is minor? Does he believe that PTSD is minor?

Hon. D. Eby: These are all very serious conditions, hon. Chair. So the question that we ask in the minor injury definition is: does this psychological or psychiatric condition result in serious impairment or not? That’s what we’re looking at. I hope that assists the member.

J. Yap: What psychological conditions does the minister think should be classified as minor?

Hon. D. Eby: I think it’s important to recognize that the question is whether or not the injury — whether it’s a physical or a psychological injury — results in serious impairment.

I accept the member’s suggestion that you could restrict this definition by saying: “These particular conditions are in, and these particular conditions are out.” You could also limit it by saying: “Okay, if it lasts a certain period of time, as far as psychological or psychiatric conditions, then that is considered not a minor injury.”

There are a number of ways to do it. We’re increasing in consultation right now with the Doctors of B.C. next week — and the B.C. Psychological Association is invited, as well — to assist us in ensuring that the definition reflects what we intend to achieve.

J. Yap: What about psychiatric conditions? What psychiatric conditions does the minister think should be classified as minor?

Hon. D. Eby: It’s the exact same answer as the last question.

J. Yap: I wonder if the minister sees the irony in the fact that his government has made mental health a top priority, with a complete ministry — I’m glad to see the minister is here in the House — yet he has, with this definition, defined psychological and psychiatric injuries as, potentially, minor.

Hon. D. Eby: I do see some irony here, hon. Chair. I see a lot of irony here today, but that is not an example of the irony that I see.

J. Yap: How will the government address delayed-onset PTSD caused by acute stress disorder?

Hon. D. Eby: This is a species of the same question that the member has been asking now for the third time. The answer is the same.

[3:30 p.m.]

We’re consulting with Doctors of B.C. this week, around ensuring that we have an appropriate set of regulations around psychological or psychiatric conditions. We’ve invited the B.C. Psychological Association as well. Regardless, whatever the physical or psychological condition is, it would be a question of serious impairment or not: is the person seriously impaired by the condition, or not?

J. Yap: How will the government address other delayed-onset psychological and psychiatric disorders?

Hon. D. Eby: What we’re doing is we’re consulting with the Doctors of British Columbia, as soon as this week, and ensuring that we have appropriate regulations relating to psychological or psychiatric conditions. I think it’s appropriate to be relying on this expert advice.

J. Yap: How will the government consider anxiety experienced solely while driving? Will this only be considered as major if they require driving as part of their daily duties?

Hon. D. Eby: Regardless of the regulations, if you’re not able to work, that falls within the category of serious impairment.

J. Yap: Has the minister or ICBC considered the cost to the health care system should costs for psychological or psychiatric impairments not be covered under the cap, should the government deem them minor?

Hon. D. Eby: Absolutely, we consider that. That is why, for the first time, we’re including counselling as one of the services available to people covered by car insurance — counselling for people who suffer psychological or psychiatric conditions as a result of a car accident — not just a portion of the cost but the actual market, out-of-pocket cost of counselling in order to deal with psychological or psychiatric conditions. It’s totally appropriate that the car insurance system cover these kinds of psychological injuries, something that did not happen until these reforms that we’re about to implement here.

[L. Reid in the chair.]

J. Yap: I thank the minister for that. I’m curious how psychological and psychiatric injuries came to be placed under minor injuries, noting the work that’s been done by the WHO indicating the loss of productivity to disability and premature death from these conditions. It’s greater in Canada than cardiovascular disease.

Hon. D. Eby: I’m trying hard not to be repetitive. Someone has an accident, and then they have generalized anxiety and stress resulting from the accident. That injury alone, which they suffered as a result of the accident, would be sufficient to put them outside the definition of minor injury and to get them outside of this whole effort by government to stream more minor injuries into a simplified process and to put a limit on pain and suffering awards — undermining a number of initiatives we have to increase benefits and reduce costs and provide more affordable car insurance. That is how this ended up in here.

I’ve advised the member five or six times now that we are consulting with the Doctors of B.C. next week, and we’ve invited the B.C. Psychological Association to ensure that the regulations reflect our intention here, which is not to capture serious impairment in terms of psychiatric or psychological conditions.

J. Yap: Can the minister tell the House what modelling or work has been done to ensure that those with psychological or psychiatric impairments would be covered? And can he commit to ensuring they will be fully covered?

Hon. D. Eby: The member is going to have to be clear about what he means by fully covered. For the first time in British Columbia, in part 7 benefits under ICBC, people with psychological or psychiatric conditions as a result of an accident will have access to counselling as an accident benefit. That is, yes, for the first time in B.C. Other than that, I’m not sure how much clearer I can be for the member.

[3:35 p.m.]

J. Yap: Did the Minister of Mental Health and Addictions or her ministry staff have any input when this definition was decided?

Hon. D. Eby: We’re consulting with the Doctors of B.C., and we’ve invited the B.C. Psychological Association to consult on these regulations.

J. Yap: I’ll take that as a no. Will the minister have future input when the definitions are narrowed or changed?

Hon. D. Eby: Any regulations under this act are passed by cabinet. All cabinet ministers have an opportunity to discuss regulations in the cabinet process.

J. Yap: What message does the minister think this definition sends to those suffering in silence with mental health afflictions, knowing that their government just defined mental health afflictions as potentially minor injuries?

Hon. D. Eby: The member’s question ignores the answers that I’ve provided to him on the past 15 questions.

J. Yap: Would the minister consider using some of his extraordinary powers in regulation to exclude psychological and psychiatric conditions from minor injuries?

Hon. D. Eby: I explained to the member why the definition is in there. Someone suffering generalized anxiety and stress resulting from a car accident…. That injury visited on them by the car accident would be sufficient to get them out of the definition of “minor injury.” It would completely undermine the intent of government here, which is to get more minor injuries into a simplified process at the civil resolution tribunal, to get the cost of administering the incredibly expensive and lengthy B.C. Supreme Court process under control and to address escalating pain and suffering awards for these types of injuries.

It facilitates two things. One is financial solvency and self-sufficiency at ICBC in delivering affordable insurance rates. The second is to really ensure that benefits for people who are injured in accidents are sufficient to actually cover their expenses when they’re seeking treatment to get better.

J. Yap: Can the minister tell us why he included chronic pain syndrome as a potential minor injury, making B.C. the only jurisdiction to do this?

Hon. D. Eby: I have answered that question. It’s in relation to jurisprudence out of Alberta.

J. Yap: Earlier the minister talked about or referred to TMJ pain, which is a condition involving the jaw muscles, I believe. Is the minister aware that TMJ has a number of long-term problems associated with it that could lead to greater pain and suffering on top of higher medical bills in the future, including increased risk of rheumatoid arthritis, osteoarthritis, jaw injuries, long-term or chronic grinding or clenching of teeth?

Hon. D. Eby: The reason that TMJ will be included in the definition is the experience in Alberta. They did not include it in their minor injury definition, and they became the North American headquarters for TMJ injuries and expertise in front of the courts. It’s not a sustainable situation in terms of insurance costs. Whether it’s TMJ, a pain syndrome, a psychological or psychiatric condition or any other injury that could be more serious over time or have additional consequences, the question is always: is it a serious impairment? If it is a serious impairment, then it is not a minor injury. It doesn’t matter whether it’s TMJ or anything else. The question is: is it a serious impairment?

M. Lee: Again, we come back to serious impairment. That suggests, of course, that anyone who has suffered from a pain syndrome or a psychological or psychiatric condition at the outset, immediately following an accident, is going to need to wait out the one-year period before they resolve their claim.

[3:40 p.m.]

Hon. D. Eby: It’s easy to imagine a scenario where someone receives an injury, whatever the type, that might otherwise be categorized, here in subsection 101(b), under “minor injury,” but it’s obvious from the assessment by that individual’s physician or by their psychiatrist or psychologist that this is not going to resolve within 12 months, and it’s causing serious impairment. There’s no need to wait. The matter could be resolved. The claim could be settled as being not in the minor injury regime.

M. Lee: I appreciate that there certainly will be circumstances where it’s very clear that an individual has, unfortunately, suffered a serious impairment or permanent, serious disfigurement. But for those other accidents, where it’s not entirely clear at the beginning of this that there might be some pain or discomfort that lingers and prolongs itself….

For situations where we, again, come back in front of something that might appear to be minor at the beginning of this process and is by definition…. As a claimant goes through their process with ICBC and is being told that “you have a pain syndrome,” which typically, on its face, presents itself as a minor injury, is there not a concern for individuals who may be of low income, or others who don’t understand the process because they’re either new immigrants or others who need that kind of assistance? Is there not a concern here, with the wide-sweeping nature of this definition, that claimants will be prejudiced in terms of their abilities to want to accept a claim because of financial reasons earlier in the process and not wait the 12 months? Is there not a concern that this definition, the way it’s working, will basically put at a disadvantage people who are low-income or are new immigrants to this country?

Hon. D. Eby: These are certainly issues, but they’re not issues that are part of this system. The issue is whether or not someone, when they settle their claim, fully appreciates all the implications of their claim.

A good example is a cost of future care award, where somebody is settling for an amount of money for all of their future medical care in the current system. If that amount of money turns out to be not enough for their medical care years down the road — they settled too soon, they didn’t understand the escalation in cost for the services that they would need, and so on — they’re in that same situation.

The change here, and the benefit here, is that for that individual, there is better coverage for out of pocket, for lost wages. There’s better coverage for medical benefits, so they don’t feel like they have to settle their claim in order to cover the cost of the services that they need to get better, because there’s better coverage for that.

For their out-of-pocket expenses, their pecuniary damages, there’s better coverage. That might actually provide them with additional supports that would assist them, especially if they’re attending a resolution tribunal and they’re getting advice that maybe they should hold on and wait — getting advice from their physician, who’s saying: “This might get worse. You need to be careful.” They’ll have that support through the period for lost wages and for medical supports while they’re waiting to see whether the serious impairment continues to last or not.

J. Yap: I’d like to get back to temporomandibular joint disorder. Is the minister also aware that TMJ pain can lead to certain connective tissue diseases that cause problems that may affect the TMJ joint?

Hon. D. Eby: I thank the member for the information. The determination for ICBC and for the civil resolution tribunal around minor injuries would be whether or not the TMJ injury causes serious impairment.

J. Yap: Is the minister aware that TMJ pain has been linked to conditions like depression; migraine headaches; back, shoulder and neck pain; as well as tinnitus?

Hon. D. Eby: Same answer.

J. Yap: Migraines. Are migraines included under “chronic pain syndrome?”

[3:45 p.m.]

Hon. D. Eby: It depends on the underlying injury that’s causing the migraines. It’s possible to have — I learn about all these things — WAD 1 or a WAD 2 or a WAD 3 whiplash. The intent of the government is to capture WAD 1 and WAD 2 in sprains and strains under the minor injury definition — and WAD 3, not.

If it is a WAD 1 or WAD 2 whiplash that is leading to the migraines, it may be captured under subsection (b). If it’s a WAD 3, it may not be. If it is captured under subsection (b), then the question is serious impairment again. Are the migraines resulting in serious impairment or not?

J. Yap: Chronic back pain. How will the cap deal with chronic back pain?

Hon. D. Eby: It’s a question of whether it’s a serious impairment or not, if it results from a sprain or a strain.

J. Yap: If someone relies on heavy lifting for their work, and, as a result of an accident or claim that is deemed minor, cannot lift, what will their recourse be?

Hon. D. Eby: If it means they can’t do their job, serious impairment beyond 12 months, then it is not in the definition of minor injuries.

J. Yap: Herein lies the challenge. If the pain arises after settlement with ICBC, what happens?

Hon. D. Eby: In the current state of the system, if you settled your tort claim, then that’s that. In the future state, you could potentially settle your tort claim and leave your accident benefits open and continue to receive accident benefits related to rehabilitation on a go-forward basis. The new system may, in fact, be better in that situation than the current system.

J. Yap: Currently, broken bones are not included. They’re automatically outside the minor injury definition. Could this be changed in regulations? For instance, will a broken pinky finger be considered more serious than, say, depression or anxiety?

Hon. D. Eby: To the member’s question, subsection (iv) of (b) says that “a prescribed injury” and “a prescribed type or class of injury” means that additional injuries could be included in that list by regulation.

The member needs to understand, with relation to the broken pinky example, that it is contextual. If someone is a concert pianist and they’re unable to work because they broke their finger, and they’re seriously impaired in their work beyond 12 months, it could result in serious impairment.

I do understand that it’s sort of like “try to think of the most trivial broken bone that you can.” But it’s contextual and about whether it results in serious impairment. Try to think of the most serious psychological syndrome that you can and try to call it a minor injury. It depends on whether or not it’s a serious impairment of the individual. Also, know that we will be refining it further.

I hope that helps the member in understanding. I hope that helps the member.

J. Yap: Will a fracture be considered the same as a break?

[3:50 p.m.]

Hon. D. Eby: Broken bones are not included currently in the list, and they are not anticipated to be. Simply, though, because you have a broken bone doesn’t mean that you’re suddenly in line for a windfall settlement with your accident claim. It depends on appropriate compensation for that injury. It just means that you are not subject to the cap, but it doesn’t necessarily mean that you would get in excess of $5,500 anyway for a broken toe, or something like that.

J. Yap: Say a hairline fracture on an ankle, which could cause considerable discomfort resulting in not being able to walk, and you have to wear that boot. Would the minister say such an example is a minor injury?

Hon. D. Eby: Since the last question, broken bones are still not on the list of minor injuries. But it’s important to understand that simply because it’s not in the minor injury regime, you can go to B.C. Supreme Court. It doesn’t mean, necessarily, that you would. You’d have to make an evaluation about the awards for those types of injuries and the impairment of your day-to-day activities, and so on.

J. Yap: I thank the minister for that.

Spinal injuries — where under the cap would these fall?

Hon. D. Eby: It’s not one of the enumerated items.

J. Yap: To be more specific, where would the minister classify disc injuries, minor or major?

Hon. D. Eby: Unless the disc injury can be described in something on the list, then it is not included.

J. Yap: Would swelling of the spine, in the minister’s opinion, be classified as a minor injury?

Hon. D. Eby: The trick to this definition, to assist the member in making these determinations, is: is the thing that I’m asking about on the list? Swelling of the spine — I don’t see it on the list here.

Now, I’m going to give a caveat. I’m not a doctor. I don’t know if swelling of the spine is considered a sprain or a strain. But I don’t see it here on the list, so it’s not captured. Broken bones are not on the list — not captured. We can probably do this all afternoon. I’m not sure it’s especially productive.

J. Yap: Would cervical radiculopathy, which is the damage or disturbance of nerve function that could result in pain, weakness and loss of sensation in the neck, arms or shoulders, depending on where the damaged roots are, be considered major or minor?

Hon. D. Eby: The member is well past my medical expertise. I can advise him that it’s not on the list and it’s not anticipated to be added in the regulations.

J. Yap: Would the fracture of a vertebrae be considered a minor injury in the opinion of the minister?

Hon. D. Eby: Broken bones — still not on the list.

J. Yap: Can the minister or ICBC tell us how long, on average, it takes for a spinal cord to heal from injury?

Hon. D. Eby: No, we can’t. We don’t know.

J. Yap: I’m asking these questions to give the example of how arbitrary in nature the minister has defined minor injuries. Will he consider spinal cord injuries in his narrowing of the terms?

Hon. D. Eby: You don’t have to narrow a definition of a term that’s not in the definition.

J. Yap: Here’s the thing. Is the minister aware that spinal injuries can be associated with and lead to depression and anxiety?

Hon. D. Eby: I thank the member for that information.

[3:55 p.m.]

J. Yap: Is the minister aware of the relationship between PTSD and spinal cord injuries?

Hon. D. Eby: I assume, because the member is asking, that there must be one. I struggle to understand the relevance, given that spinal cord injuries are not in the definition.

J. Yap: Can the minister tell us why so much around this cap and defining minor injuries is left to regulation and not formalized in the legislation?

Hon. D. Eby: It’s still, as it was earlier this afternoon, related to the fact that case law, as it evolves…. As lawyers committed to getting around the cap work to try to get around the cap, the case law that evolves needs to be responded to, to ensure that the intent of the definition is kept.

The intent of the definition is to ensure financial stability at ICBC and ensure their ability to deliver affordable car insurance to British Columbians, with appropriate benefits, by streamlining the process for resolving disputes around minor injuries and also by capping pain and suffering awards — not out-of-pocket expenses but pain and suffering awards for minor injuries.

M. Lee: I think that speaks to the concern in terms of the breadth of the definition of minor injury and the likely possibility, as the Attorney General has explained to this House just now, that this definition can continue to broaden and include other categories of injuries in an effort to maintain costs. That is the concern.

This is where I believe there is some difficulty in terms of supporting this bill in the current form of this definition, not knowing the breadth and the ability of this government to extend the reach of this definition. Can the Attorney General at least confirm that the way that the minor injury definition is today will not be extended in such a way that will be prejudicial to British Columbians?

Hon. D. Eby: The member will know that regulation-making powers are constrained by the statute itself. In this case, this is the regulation-making power in relation to minor injuries.

Any legislative drafter that was asked by government to include in a regulation that a very serious injury was, in fact, a prescribed minor injury, would tell the person making the request that that is not possible, that that would be subject to judicial review for being outside the jurisdiction of the government.

The prescribed class of injuries here is constrained by the fact that the regulation-making power is under the heading of “Minor Injuries” and further constrained by the fact that subsection (a) talks about, “does not result in a serious impairment or a permanent serious disfigurement of the claimant,” and then there’s a list of some examples there.

But the regulation-making power is restricted by these very specific directions, and I assure the member that if government attempted to put a more serious injury in by regulation that was outside the jurisdiction that this section sets out, it would be challenged immediately by plaintiff’s counsel.

M. Lee: Well, I guess we still have the issue, though, of course, where psychological and psychiatric conditions are still under review and consultation, as the Attorney General has indicated to this House. That’s another example, of course, where this definition, currently as presented to the House, is somewhat undefined.

By virtue of the regulation-making power under section 104, there is — we haven’t yet gone through this, but we will with my colleague from Richmond-Steveston — a breadth to, of course, the extent to which regulations are able to be made in respect of any matter relating to this act or not considered under this act.

I think that the mere title of the section, “Minor Injuries,” of course, is somewhat circular, because it’s defined within the act, which defines within the regulation. I don’t believe that the title itself would have any meaning, necessarily, because it relies upon what’s set out in the act itself — this particular section, 29 — plus what’s to come under the regulation.

I don’t think that that is helpful comfort to British Columbians, to know the extent to which this government, potentially, may expand the reach of this minor injury definition.

[4:00 p.m.]

Hon. D. Eby: I thank the member for his comments, and I’ll just reiterate that this is the most comprehensive definition of “minor injury” in Canada, and we are the last province to do this.

J. Yap: One more example. What kind of coverage will be available to patients who are maybe forced to scale back hours at work or forced to seek retraining as a result of injuries?

Hon. D. Eby: If they have a tort claim, any part of the gap between what they’re able to earn post-accident and what they were able to earn before is part of their tort claim. There’s no restriction on that.

J. Yap: Can the minister tell us which party the onus is on to prove that their pain and suffering is above the $5,500 cap?

Hon. D. Eby: The individual who is injured in the car accident will go to their physician, or their service provider will provide that information to ICBC about the extent of their injuries. If they disagree with ICBC’s assessment of the situation they face, they will go to the civil resolution tribunal and make arguments that ICBC’s assessment was incorrect.

J. Yap: How would a person go about, and what criteria would they have to meet, in order to be moved from minor to the major cap?

Hon. D. Eby: Really difficult to hear that question at this stage in the day. The definition of “minor injury” is captured in this section, 101. It says minor injury. It’s got a whole definition there, subject to whether or not it results in serious impairment. We’ve been talking about it for the past hour and a half or so. That is the test.

J. Yap: We understand, through the briefing that we received, that officials have indicated that at least two criteria need to be met in order for the claimant to be moved to major. Can the minister confirm this?

Hon. D. Eby: As we’ve been discussing, in order for your pain and suffering award to be capped, you have to meet two requirements. One is that it is on the minor injury list and the other is that it doesn’t result in serious impairment as defined by the act.

J. Yap: Can the minister tell us how ICBC will determine if the victim is entitled to move up to the major cap?

Hon. D. Eby: They’ll be doing a review of the medical evidence.

J. Yap: I understand that patients will be required to follow a treatment plan for up to a year, and if they are still in duress, they will be moved up. Can the minister confirm that that’s the correct assumption?

Hon. D. Eby: Yes. If you have a minor injury and it’s causing serious impairment, there are prescribed medical protocols designed in consultation with medical experts — think of it as best efforts to get better — that an individual might be asked to undertake.

[4:05 p.m.]

But it’s an oversimplification to say that every individual would be facing that kind of situation. This is for situations where someone has what appears to be, based on the medical information, a minor injury, but they are not getting better or it’s affecting them more profoundly than would be expected.

M. Lee: Just to clarify. The Attorney General said they might need to follow the designated treatment protocols. In what way is that the case?

Hon. D. Eby: The protocols are only related to people with minor injuries that say that they have serious impairment. So if you have a minor injury and you’re not saying you have serious impairment, it doesn’t apply to you. If you have a non-minor injury, it doesn’t fall within the definition. It doesn’t apply to you. There’s a discrete group of individuals where this would apply, and that’s what was intended with the last answer.

M. Lee: I meant to ask another follow-on question to the member for Richmond-Steveston. Just to talk about the diagnostic and treatment protocol that’s referred to in subsection 2(a) of section 101, under serious impairment, in order for a claimant to demonstrate that…. There’s a presumption that’s on the claimant, him or herself, first. But in terms of the diagnostic and treatment protocol itself, that is a situation where ICBC, presumably, has put that to the claimant and the claimant must follow that treatment. Is that correct?

Hon. D. Eby: The only consequence of not following it, for that discrete group of claimants, means that your pain and suffering award would still be subject to the cap. There’s no other consequence.

For those individuals with a reasonable excuse about why they weren’t able to follow the protocol, for those individuals that can show that even if they’d done the diagnostic and treatment protocol, it wouldn’t have made a difference to them anyway — those people, as well, are not affected by this.

You’re getting to a very small group of people who have a minor injury who are asking for consideration that they’re facing serious impairment, so to not have the cap on pain and suffering awards apply to them. They don’t have a reasonable excuse. They’re asking for the serious impairment to apply in their case.

In that case, ICBC may ask them to participate in a diagnostic and treatment protocol. If they do, and they’re not getting better and they’re still facing serious impairment, then they’re not subject to the cap. If they don’t, and they can show that either way it wouldn’t have mattered, they’re not subject to the cap. But if they refuse to do it, then they are subject to the cap on pain and suffering awards.

M. Lee: I think I understood most of what the Attorney General just laid out. I think it’s a bit of a matrix that a claimant needs to navigate through.

When we say “comply with treatment in accordance with the diagnostic and treatment protocol prescribed for the injury,” at what juncture is the claimant made aware of what that treatment is, meaning a treatment that’s in accordance with the diagnostic and treatment protocol?

Hon. D. Eby: Their medical practitioner would know what the protocols are. It’s being developed in consultation with medical practitioners.

[4:10 p.m.]

M. Lee: Basically, it’s a situation where a claimant goes to see his or her doctor, gets a diagnosis, a prognosis. The health report is filed with ICBC under the previous section of the act that we reviewed.

The medical doctor prescribes a diagnostic and treatment protocol for the particular injury that that medical doctor is aware of. What if that medical doctor or physician, physiotherapist or what have you — health professional — is not aware of that protocol? Whose responsibility is it to know what the appropriate protocol is so that, again, this claimant’s rights are not prejudiced under this provision?

Hon. D. Eby: It would be very strange that a doctor getting paid by ICBC for the work that they’re doing in relation to their patient wouldn’t know about what the protocol is. The person is going to their medical service provider. That service provider is making a claim from ICBC for the expense to treat that individual. They would know because they’re receiving compensation. They’re in contact with ICBC. I can’t think of a scenario where this individual wouldn’t know.

M. Lee: I appreciate the response. If, however, for some reason, there’s a mistake or a change…. These diagnostic and treatment protocols are prescribed, also, by regulation. If there’s a change for a particular form of injury, whose responsibility is it for a gap in the system, if that occurs?

Hon. D. Eby: In subsection 101(2)(a), it talks about: “the claimant, without reasonable excuse, fails to seek a diagnosis or comply with treatment” in accordance with a protocol. A reasonable excuse would be: “I went to my physician. They told me to do X” or “They didn’t tell me that there was a protocol, so I didn’t follow it.” That would be an example of a reasonable excuse.

M. Lee: Could I ask the Attorney General to give other examples of what would constitute a reasonable excuse under this section?

Hon. D. Eby: Perhaps the person attends at their physician’s office, and the physician recommends against the protocol — says it could make things worse. Perhaps the person, shortly after the accident, is arrested, is in custody and is unable to see a physician. Perhaps, shortly after the accident, the person has another disabling injury or gets sick and is in hospital. There are an infinite number of potential examples of what reasonable excuses might be for not following a protocol.

M. Lee: I appreciate that there may be many different types of examples of a reasonable excuse. That, I think, would be appropriate for the claimant’s benefit. But on the first example, where a claimant sees his or her physician and, in their medical opinion, they prescribe a different treatment plan for the injury…. That’s a situation where ICBC will accept that that is a reasonable excuse, and under this provision, they won’t be imposing what is, by regulation, a diagnostic and treatment protocol on that physician.

Therefore, am I hearing the Attorney General say that they will defer to the medical doctor’s opinion, as opposed to trying to impose a protocol on that health practitioner?

Hon. D. Eby: A couple of points to clarify things. One is that these are pretty high-level, big-picture, best-practice responses for certain categories of injury. It’s extremely unlikely that a physician would not intuitively, through their training, be right on track with these, if someone attends at their physician’s office with a certain type of injury.

[4:15 p.m.]

The second is that when a patient shows up with the form from ICBC for medical information related to the injury, it’s anticipated that the form will say: “Did the patient follow the prescribed protocol, and if not, why not?” This is the opportunity for the physician to say: “I don’t agree with the protocol. I thought it would amplify or exacerbate the patient’s injuries or whatever.” It’s the opportunity for a reasonable excuse for someone here.

Again, these are really big picture. There are people who have injuries that don’t seek treatment, and the injury gets worse over time. This is an attempt to encourage people to seek treatment in order to get better. These are intended to be, and will be, developed in consultation with the Doctors of B.C. — high-level, commonsense physician responses to certain classes of injuries that their training would lead them to, regardless of whether or not there was a prescribed protocol. That’s why we’re doing the consultation with them.

M. Lee: Just a further point on this topic, though. Can this provision itself…? I understand the need to seek a diagnosis. I understand the need to comply with treatment — meaning there is some responsibility on the claimant to actually help deal with their injury. But why does it need to be in accordance with a treatment protocol designed by government?

Hon. D. Eby: These are being created in consultation with the Doctors of B.C., and it’s quite likely they’ll link to actual protocols created by the Doctors of B.C.

J. Yap: Just to be clear, how will that treatment plan or protocol be determined? Who will have the final sign-off authority? Will it be the medical practitioner, the doctor, or will ICBC have input or a veto?

Hon. D. Eby: The actual protocols themselves are prescribed in regulation by cabinet, by the Lieutenant-Governor-in-Council. The treatment protocols, though, are not. They’re designed in consultation with the Doctors of B.C.

ICBC doesn’t have the ability to compel people to do certain treatments. These would be protocols designed by doctors and put into regulation as basic responses for a certain class of injuries.

J. Yap: Just to be clear, I heard the minister say that the medical practitioner will determine the protocol or the treatment plan. ICBC will not interfere in that process and will accept the professional judgment of the doctor.

Hon. D. Eby: Let’s say, just for the sake of argument — because these are going to be very high-level protocols — the person’s physician looks at it and says: “If you do this, you’re going to get worse, in my medical opinion.” I just can’t think of a situation where that wouldn’t be a reasonable excuse for someone not to follow that particular protocol.

J. Yap: I understand that treatment plans will be required to follow what have been described as best practices. Can the minister elaborate on the best practices that the government has in mind?

Hon. D. Eby: It might be helpful for the member to have an example from Alberta around their treatment protocols for strains and sprains. An example is: “managing inflammation and pain, as required, (i) by the protected use of ice; (ii) by elevating the injured area; (iii) by compression; (iv) by using reasonable and necessary equipment to protect a sprained joint during the acute phase of recovery.”

[4:20 p.m.]

Other examples. Within the practitioner’s scope of practice, for a third-degree strain or sprain, a health care practitioner may authorize necessary diagnostic imaging and laboratory testing, necessary medication as determined by the health care practitioner and the acquisition of necessary supplies to assist in the treatment or rehabilitation of the injury.

This is what I mean. Ours may not look identically like that, but I think it gives the member a flavour of what’s intended here, which is physician best-practice responses to certain classes of injuries, “Use ice on your sprain and strain. Elevate it. Take the medication I prescribe for you. Use this medical-assistance device to minimize strain on the affected joint” — basic stuff.

J. Yap: I appreciate the minister reciting from that list and giving us in this House the flavour of what will be those best practices. I presume the best practices will be finalized and confirmed by regulation. Is that correct?

Hon. D. Eby: Yes.

J. Yap: How will the minister communicate this to the public? It seems to me that this would be very important information for ICBC customers, to know what their rights are should they face this situation, to ensure they’re following these best practices with what could be a minor injury that may be more significant than a minor injury.

Hon. D. Eby: ICBC is and will be in active communication with the medical community and the service provider community, and their professional bodies will be assisting us in getting the word out. In addition, physicians and service providers that are billing ICBC will be receiving information from ICBC about that.

J. Yap: Will the minister be consulting with medical professionals in this regard, on the best practices? Can he provide a detailed list of who he plans to consult, with respect to best practices?

Hon. D. Eby: The people who normally treat these types of injuries will be consulted — occupational therapists, Doctors of B.C., physios and chiropractors, as examples.

J. Yap: What is the timeline for finishing this consultation and ensuring that the information is public?

Hon. D. Eby: It’s still late fall, and it needs to be implemented by April 1, 2019.

J. Yap: Can the minister tell us how he came to the threshold of one year? I’m noting that in some jurisdictions, the timeline is shorter than one year.

Hon. D. Eby: As I answered the member’s colleague, he’ll note in the definition of “serious impairment” that “another prescribed period” is there, which enables us to be responsive. If 12 months is too long for a certain injury or too short for another type of injury, we can modify it to be responsive to the realities on the ground or concerns that are raised about the system. It provides us with flexibility.

Twelve months is the length of time that was used here in the legislation to determine serious impairment, which is a defined term necessary to evaluate minor injury under this proposed legislation.

J. Yap: If someone is suffering for, say, 11 months and 25 days, would there be consideration to move them to a major injury classification?

[4:25 p.m.]

Hon. D. Eby: The scenario where someone, 24 hours before the deadline, suddenly is no longer facing a serious impairment is extremely unlikely. So in these scenarios, the resolution of the claim depends on a discussion between ICBC and the party or their lawyer. They will have those discussions, and each claim is resolved on its individual merits. The scenario of someone seriously impaired and then just in 11 months and 29 days suddenly realizing that they’re not seriously impaired is extremely unlikely.

What would happen in that situation is that they would have access to all of their pecuniary damages, their out-of-pocket damages; where there’s an at-fault accident, their tort claim for the lost wages, for the loss of housekeeping ability, the impact on any out-of-pocket expenses and so on. They’d also have access to the benefits regime that we talked about. That would still exist; it’s not affected. So the only thing would be the cap on the pain and suffering award.

J. Yap: On May 2, the minister made a public statement and mentioned people missing work and school — as essential tasks. Why did the minister leave out, for example, stay-at-home parents, seniors who may be retired, those not attending school and unemployed people not attending school?

Hon. D. Eby: It’s serious impairment of the usual daily activities of life. It’s different for all British Columbians. In public statements, oftentimes, I will use various examples to illustrate what I’m talking about. The member, as far as the government’s intent, perhaps will be comforted to know that a serious impairment, with respect to daily activities, for some people is school. For some people that’s work. For some people that’s taking care of grandkids, or whatever it may be.

J. Yap: I’d like to touch on parents who choose to stay home with their children. Will there be provisions to quantify their pain and suffering and the effects that the pain and suffering have on their day-to-day life?

Hon. D. Eby: Well, it’s the same thing. It’s serious impairment with respect to daily activities — so in that case, the ability of the parents to take care of their children.

J. Yap: Let’s work through an example here. Does a young mother from Surrey, on maternity leave, who gets headaches for more than 12 months because her neck was sprained but not broken, in a car accident caused by an intoxicated or distracted driver, have a serious impairment or what the minister calls a minor injury?

Hon. D. Eby: The question of serious impairment depends on whether or not the individuals are compromised in performing the daily activities of their lives. The member cited the example of an impaired or distracted driver. It doesn’t matter what the other driver was doing. The question is the serious impairment for that part of the test.

For the other driver who’s driving distracted or impaired, there is a whole array of penalties that will be levied upon that individual if they are in fact found to have been engaging in that activity. It’s separate, though, from this minor injury definition.

J. Yap: Another example. Does the retired senior living in Point Grey, having chronic knee pain longer than 12 months, caused by a driver blowing a red light, not have a serious impairment, or what the minister considers a minor injury?

Hon. D. Eby: It’s the same answer. That’s exactly why we’re doing the red-light camera program — to discourage that kind of thing from happening — and I hope the member supports it.

M. Lee: I just wanted to come back to serious impairment, just in terms of reasonable excuse. Someone who suffers from some mental injury or a psychological or psychiatric condition, who might have some impaired judgment following injuries sustained from an accident, somebody who perhaps suffers from some depression, given the nature of the accident…. If that amounted to a situation where that individual did not fully follow their treatment plan as prescribed by their physician, would that constitute a reasonable excuse?

[4:30 p.m.]

Hon. D. Eby: It could possibly result in what would be considered a reasonable excuse.

M. Lee: Is there not a level of impairment, though? We’re talking about where the person’s judgment is impaired. That would not be a situation where that would affect their judgment in terms of their ability to follow the plan. That, again, would not constitute a reasonable excuse.

Hon. D. Eby: Maybe the member misheard me. I said it could possibly be considered a reasonable excuse in the circumstances.

M. Lee: Sorry, I misheard you. You did say “possibly”? Okay. Thank you.

In terms of subsection (3) under the “serious impairment” definition, where the “injury is not deemed, under subsection (2), to be a minor injury,” if the claimant is able to establish that, “…even if the claimant had sought a diagnosis and complied with treatment in accordance with a diagnostic and treatment protocol prescribed for the injury.” I wanted to ask about that specific provision. That seems to set a high standard for the claimant to be able to demonstrate that. In what circumstances is this provision being thought about that would actually enable a claimant to meet that test?

Hon. D. Eby: This is an individual with a minor injury who with no reasonable excuse did not follow the protocols for rehabilitation, which are protocols designed as high-level best practices by doctors or other care providers. In that unique scenario, someone is like: “I’m not doing it. I don’t even have an excuse. I’m just not doing it.”

[R. Chouhan in the chair.]

They can still be exempted from the cap if they show up and demonstrate that it wouldn’t have mattered anyway. That could be medical evidence from a physician and so on.

I accept the member’s suggestion that this does place a burden on the person to demonstrate that. But in the situation of someone who has a minor injury and refuses to follow basic high-level medical protocols to try to rehabilitate and then still wants to claim a higher pain and suffering award beyond the cap, to ask them and to say, “Well, can you at least show us that it wouldn’t have made a difference?” before that happens, I think, is a reasonable request.

M. Lee: Given the nature of the cap, the ability of a claimant to utilize this provision would likely be limited, in the sense of…. I appreciate the burden is on the claimant to demonstrate this. But the ability of a claimant to actually go out and seek a medical opinion, in the context of what presumably would be a CRT process….

First of all, let me confirm that when the claimant is following this process, this would be a matter that would be resolved with the CRT or in front of the CRT. Is that correct?

Hon. D. Eby: It only goes to the CRT if there’s some kind of a dispute.

M. Lee: It seems to me that this provision, though, is relating to a dispute where the claimant would be claiming that the person, even if they had got the right diagnosis and followed the protocol, still would have had an injury that is not a minor injury. Is this not a dispute? How else would the claimant be utilizing this section?

[4:35 p.m.]

Hon. D. Eby: The law here guides the adjudicator in the claim. So the adjudicator says to the individual: “Did you follow the protocol?” “No, I didn’t.” “Did you have a reasonable excuse?” “No, I didn’t have a reasonable excuse.” “Okay, is there any reason to believe that even if you’d followed the protocol, it wouldn’t have made a difference?” “Yes, I have this record from my doctor that says that even if I’d followed the protocol, it wouldn’t have made a difference in my case.” “Okay, there’s no dispute. You fall within the category within the law. Off you go to determine the value of the claim.”

“No, I don’t have a record. I don’t have any evidence to present that says that it wouldn’t make a difference. I’ll go get that and bring it back” or “It simply doesn’t exist, and I can’t get it, because, in fact, elevating my sprain or strain, putting ice on it, wearing a proper brace, would have made a difference.”

So it’s a fact-based inquiry. It’s guided in part by the adjudicator at ICBC to see what the claim situation is against the legislation. If there is a dispute, so I present the medical record to the ICBC adjudicator, and they say, “You know what? I’m not satisfied that it wouldn’t have made a difference,” then off you go to the civil resolution tribunal to resolve the dispute about whether or not that medical record shows that it would or wouldn’t have made a difference.

M. Lee: I just wanted to further discuss subsection (4) under the same section, which states that “a minor injury includes a symptom or a condition associated with the injury whether or not the symptom or condition resolves within 12 months.” Of course, in the definition of “minor injury,” it includes certain types of conditions.

What is the purpose of this subsection, which speaks about conditions or symptoms associated with the injury? What is that referring to? Is it referring to something different from what’s already in the definition?

Hon. D. Eby: One of the members opposite provided the example of migraine headaches caused by a whiplash injury. That’s an example of what’s intended here. The issue about “12 months” is related to the serious impairment issue — whether or not you’re seriously impaired for more than 12 months.

M. Lee: Working through that example. Someone who has an accident which involves whiplash and has a further symptom or condition of migraine headaches arising from that…. If the purpose for the time period, about whether it resolves within 12 months or not…. If it resolves within more than 12 months, isn’t that itself something that indicates that the condition is no longer a minor injury?

Hon. D. Eby: That is half of the test. The other half is serious impairment. It’s important to note that that individual would still be able to access medical treatment for that injury on a go-forward basis. This would be in relation to whether or not they go to B.C. Supreme Court or the civil resolution tribunal, and the extent of the pain and suffering award that they might receive.

M. Lee: So the purpose, then, of including the reference to 12 months is what?

Hon. D. Eby: It’s just greater clarity in relation to the definition of “serious impairment.”

M. Lee: The serious impairment definition already has the reference to 12 months. I’m still unclear as to why it needs to be repeated down below, in a separate provision. I just want to understand, for clarity purposes. You could say that this is for greater certainty, but that’s what I want to confirm — if that’s the case.

Hon. D. Eby: I can confirm that that is the case.

[4:40 p.m.]

J. Yap: I’d like to get the minister’s views on another example. Where we had left off, we were going through some examples. Does the unemployed person who’s not attending school and who suffers shoulder and neck pain for longer than 12 months as a result of being hit on the way home from a job interview by a driver moving at an excessive speed have a serious impairment or a minor injury?

Hon. D. Eby: It depends. There’s a two-part definition for minor injury. The first is a list of conditions. The second is the requirement of serious impairment, which is that it’s “not resolved within 12 months,” and it impairs significantly their daily activities, whether they’re employed or unemployed.

The tort claim would go forward, the out-of-pocket…. Let’s say that they received an offer from the job interview, and they weren’t then able to take the job as a result. The lost wages that arose from that…. They’d still have access to sue for that if it’s an at-fault accident. They’d still have access to the health benefits.

If it was defined as a minor injury, there would be a cap on the pain and suffering award of $5,500, and it would be resolved through the civil resolution tribunal.

J. Yap: Does the minister not believe that if a person is socioeconomically disadvantaged, and suffering, they may be forced to settle early, even though their injuries are more than the $5,500 cap?

Hon. D. Eby: The member has literally asked this same question already.

They have access, in this new system that we are proposing, to increased benefits, increased out-of-pocket expenses covered.

Currently under the system, service benefit levels are set at 1993 levels. So you go to a physiotherapist. You say: “I’m going to pay you the same you got in 1993. Can you give me some service?” The answer will be no, because in 1993, a movie cost five bucks, and there has been significant inflation since then.

These changes enable us to increase benefits, so that unemployed, unfortunate individual that does not have money to pay the difference between the market rate and what ICBC is currently able to cover is now covered for the full market rate. They’ll actually be able to access the physiotherapy to get better.

Under the current system, they’re not able to pay that out of pocket, so they’re really in trouble. So the system is actually better, not worse. For the second time, I’ll point that out to the member for the same question.

J. Yap: Actually, a quick reference of Hansard will show this is the first example where we used the example of a potential socioeconomically disadvantaged claimant. With this example, has consideration been given or will it be given for people who fall into this situation?

Hon. D. Eby: Far more consideration than the current system.

J. Yap: Will there be consideration given to people in these situations who may have pain and suffering but do not have the resources to fight on for upwards of a year?

Hon. D. Eby: Again, far more consideration than the current system, with elevated benefit levels that actually cover the market costs of the treatments they’ll need to get better, so they don’t have to pay out of pocket.

J. Yap: How can people have faith that they will be treated fairly under a system the minister has stated is designed to save money?

Hon. D. Eby: Because the savings come from the reduced administration costs, the reduced expert costs, the reduced slogging through years of B.C. Supreme Court for minor injuries.

The savings do not come at the expense of people who are injured in accidents, like the previous system did — where benefits didn’t increase for 25 years for individuals injured in accidents and, in addition, where I assume the previous government’s strategy was going to be to increase car insurance rates for British Columbians to cover the difference if they oppose this plan.

British Columbians can have confidence in two things. One is that the government is committed to ensuring affordable car insurance for them and committed to ensuring good benefits for them so that if they’re injured, they can get the care that they need. And we are doing it, definitely, at the expense of a bloated, delayed system, reliant on multiple experts charging more than $10,000 for a report.

It was a ridiculous system for minor injuries. That is why we are streaming them into a civil resolution tribunal for faster independent resolution of disputes. That is why we are capping the continuous increases in pain and suffering awards that we’ve seen in the system. In fact, we are four years later than the last jurisdiction in Canada to do this. We are the last jurisdiction in Canada to do this.

[4:45 p.m.]

J. Yap: I appreciate the minister’s answer, but would people not have a right to be wary of a system that is seemingly stacked against them to save a few dollars?

Hon. D. Eby: Absolute nonsense.

J. Yap: When can British Columbians expect the minister’s complete definition of what is a minor injury, and what input will ICBC be providing?

Hon. D. Eby: Now, I understand that the member is reading a list of questions, but I’d appreciate it if he read them before he stood up and asked them. This is the third time he’s asked the same question.

We anticipate having the regulations in the late fall. We anticipate, obviously, implementing this system by April 1, 2019.

J. Yap: What powers does the minister plan to establish on the onus of proof? Who will provide feedback on examination and assessment?

Hon. D. Eby: The individual who has been injured in the accident has access to information that they need to bring forward — their level of injury, the treatments that they need. They need to show up to ICBC and ask for those treatments. They need to show up to their doctor’s office, and the doctor will say: “You need to go to physio.” And then they show up to ICBC and say “I need to be covered for physio.”

It’s a scenario where the individual with the information about the injury who’s making the claim to ICBC is bringing that information to ICBC. If ICBC says, “No, we are not giving you physiotherapy benefits” or “We think that this is a minor injury,” and the individual or the individual’s lawyer and the individual together disagree, then they’re off to the civil resolution tribunal to resolve the dispute.

There is an onus on the individual that has the information to come forward, to bring that information forward to ICBC, because the individual is the one that’s making the claim and that has that information. Any disputes are resolved between that individual and the adjustor at the civil resolution tribunal.

J. Yap: Does the minister believe that this creates a power imbalance between victims and ICBC?

Hon. D. Eby: The current system, the B.C. Supreme Court system, where every claim goes to B.C. Supreme Court, requires that an individual retain a lawyer. We are not taking away the ability of an individual to retain a lawyer for assistance. But we are changing a system to the civil resolution tribunal, which is designed to facilitate individuals who may wish to show up and represent themselves. They have had good success with a number of the disputes that have been assigned to them: strata disputes, claims under $5,000 for small claims.

So the system is more favourable if someone decides to represent themselves than the current system, and they can still bring a lawyer. The power imbalance is, arguably, either the same or slightly better under the new system.

J. Yap: What would the B.C. Civil Liberties Association think of this sweeping power? We all know that the minister previously was the executive director, from 2008 to 2012, of the association. What would they say?

Hon. D. Eby: I think that the member can certainly go ask them. He’s more than welcome to do that. He keeps talking about sweeping powers. I’m not sure to what he is referring.

J. Yap: With regard to powers granted to regulation on examination, diagnosis and treatment, does the minister not think that this is a large, sweeping power?

Hon. D. Eby: The member clearly has no understanding of the current system. An individual who is making a tort claim and does so without seeking any medical treatment to improve their outcomes, who refuses to provide medical records from their doctors, who doesn’t attend rehabilitation and then attempts to make a claim — their claim is profoundly affected by that. I guess, compared to, like, zero or nothing, this might seem rather remarkably significant in terms of its implications.

[4:50 p.m.]

The fact of the matter is that this is taking place within an existing tort system, where individuals are required to call all kinds of evidence about their medical condition — about the steps they took to get better, about their financial situation and their losses, their situation before and after the accident, their mental health situation — in great, invasive detail, in B.C. Supreme Court.

Then to have some person that they don’t know, a judge, decide about how much their claim is worth — it sounds like quite an awful system when you just lay it out there. You have to tell us everything about your personal life if you want to get an award in front of this person you don’t know, and the public is invited to come in and sit and listen to it. While that sounds really awful and invasive, that’s our court system.

I can agree with the member that if you read these provisions in isolation — as if there is no court system, as if there is no tort system — then it might sound strange to people. But these are not strange things in resolving matters when someone is claiming accident benefits, when they’re claiming damages resulting from an injury.

I’m trying to understand, when the member repeatedly refers to sweeping powers, the context of that, and now I think I know a little better.

J. Yap: Perhaps my next question will help the minister understand our concern here. Why should cabinet decide how people should be treated?

Hon. D. Eby: I know this isn’t the member’s first day in the Legislature. That is the job that we do here in the Legislature. The job of cabinet is to promulgate all number of regulations that might have very significant effects on people’s lives. They do so seriously and with knowledge of political accountability every four years or sooner, in a minority government situation.

The member knows that we pass laws here all the time and regulations that do affect people’s lives. I think I’ve heard it described as the least worst system. It’s a challenging system sometimes, but it is an important system.

M. Lee: I just wanted to join my colleague, the member for Richmond-Steveston, in reviewing more fully the regulation-making power under section 104 of the proposed bill.

Clearly, the legislation gives cabinet the power and ability to determine what is a minor injury, how a doctor must examine, assess, diagnose and treat an injury and then, of course, require British Columbians to meet a deadline for medical assessment or examination, the type of treatment protocol required for an injury and the type and number of treatments allowed and which doctor or health care professional an injured British Columbian must be referred to for assessment and treatment.

Can the Attorney General give other examples of other legislation in this province which gives cabinet that level of authority to stipulate all of those things?

Hon. D. Eby: All of ICBC’s accident benefits are provided by regulation. That regime is governed by regulation, as one example.

These provisions mirror provisions in provinces across Canada. These are not unique or strange provisions. These are provisions that are similar to jurisdictions across Canada. The member might be comforted to know that ICBC’s accident benefits program, such as it is, is governed by regulation.

M. Lee: Having heard that, does the Attorney General believe it’s the role of government to tell doctors and physicians and health care practitioners how to treat their patients?

Hon. D. Eby: Like other provinces, we’re engaging in consultation with doctors around best practices. We believe doctors are the experts in this, and we’ll be following their guidance in terms of high-level protocols for treating things like strains and sprains and other injuries.

J. Yap: Following up on my colleague’s line of questioning, does the minister think giving himself power over procedures, guidelines, criteria, requirements and standards to be followed or met seems a little extreme?

[4:55 p.m.]

Hon. D. Eby: Yes, that’s why this bill does not do that.

J. Yap: Does the minister believe he is the right person or that cabinet is the right body to make determination on prescribing circumstances in which a prescribed diagnostic and treatment protocol applies when a protocol no longer applies?

Hon. D. Eby: We have many regulations in British Columbia that govern all kinds of matters in which cabinet is not expert — the level of a pollutant that’s permitted to be discharged into a watershed, how a particular building should be constructed and materials that should be used. We rely on the advice of experts — and in this case, the experts are doctors and other care providers — in setting regulations.

J. Yap: Does the minister have any intention on changing the time limit?

Hon. D. Eby: I don’t know what time limit…. I assume the member’s talking about the serious impairment definition of 12 months. It’s clear there that there is an opportunity for another prescribed period, which I’ve addressed a couple times now — about addressing, if there’s a certain injury, that the time period of 12 months is too short or too long, that we could prescribe a different period that’s more appropriate.

J. Yap: Later on in this section, under subsection (2), it gives cabinet the ability to adopt by reference, in whole or in part, through regulation, any “procedures, guidelines, criteria, requirements or standards published by a body, or person with a professional designation.” What is the intention in this section?

Hon. D. Eby: If there’s already a protocol that doctors or other care providers have adopted for treating a particular injury, we can just incorporate it by reference through this section.

J. Yap: If a published work is not agreed upon, why would cabinet force it upon health care professionals?

Hon. D. Eby: The specific section does require that the standards be published by a body or a person with a professional designation. The idea of the regulations is to consult with medical professionals and service providers to ensure that these high-level protocols make sense to them. There’s no desire to force protocols on any service providers. Just the opposite. We’re hopeful that they’ll guide us in setting appropriate protocols.

J. Yap: Would there be consultation with the health care profession on standards of care and their relation to the published work?

Hon. D. Eby: The answer is yes.

J. Yap: An example. Would the minister enforce, say, a paper from the Canadian Centre for Policy Alternatives upon the medical profession?

Hon. D. Eby: I don’t believe they’re a professional body or an individual with a professional designation, but I might be corrected on that.

J. Yap: Does the minister not find this sweeping power to prescribe standards, procedures and guidelines on an area where almost no member of cabinet has any expertise…?

Hon. D. Eby: The member’s question, first of all, mischaracterizes the section. Clearly, where a professional body, like Doctors of B.C., has an existing treatment guideline for physicians, for a certain type of injury, this provision allows us to incorporate it by reference.

The member begins by suggesting that a group of public policy folks, that somehow that would be incorporated by reference into the legislation, and then says: “What a sweeping, ridiculous power.” Well, that…. I mean, I don’t even know where to start.

The idea here is that if physicians or another group of health care professionals have an existing protocol, it could be incorporated by reference. That way, if they change it over time, we don’t have to go back and change the regulations over time, because they’re the ones monitoring the evidence. They’re the ones who are expert.

In fact, it is the complete opposite of what the member suggested, that cabinet members are doing this. This section allows us to incorporate by reference protocols that are updated by professionals who are expert in the area.

[5:00 p.m.]

J. Yap: What is meant by this verbiage: “Procedures, guidelines, criteria, requirements or standards adopted under subsection (2) may be adopted as they stand at the time of adoption or as amended from time to time”? Could the minister define “time to time”?

Hon. D. Eby: This section allows us to say that the treatment protocol that we’ve incorporated is frozen in time as of the day that it’s incorporated or, if it’s updated by the body in question, that it changes as it’s updated.

We had an example of this, discussed in another bill, where we were talking about pollution standards from the Environmental Protection Agency in the United States that are incorporated into B.C. law about stoves — emissions from stoves and appropriate emissions from wood-burning stoves. It’s frozen in time because it was from another jurisdiction, but you can also incorporate so that it stays up to date, based on the updating by the relevant professional body.

J. Yap: I’ll ask again. Does the minister not see that this is too much power for him to determine in cabinet chambers by the stroke of a pen?

Hon. D. Eby: Yes, I do agree that it’s too much for me to do by myself. It’s, first of all, done by cabinet. Secondly, cabinet passes all kinds of regulations in which they are not expert, in which they are reliant on experts. In this situation, like those situations, we will rely on experts. In this situation, those experts are care providers.

J. Yap: Does the minister not believe that such changes should be done in consultation with the medical profession and brought before this House for debate?

Hon. D. Eby: Yes, I believe they should be consulted on it. The members have lots of opportunity to raise matters for debate in this House in question period or otherwise, and I invite them to do so if they have any concern about regulations that we adopt here.

J. Yap: How can the minister be expected to administer fair regulation when he’s responsible for ICBC on matters such as protocol of claimants, insurers and prescribed health care practitioners?

Hon. D. Eby: It’s hard to know who, other than the minister responsible for ICBC, would be bringing these changes forward, hon. Chair.

J. Yap: Looking at this same section, why did the minister feel it necessary to give himself the power to impose limits upon the roles of claimants, insurers and prescribed health care practitioners?

Hon. D. Eby: Again, absolute nonsense. I’m not giving myself any powers under this regulation.

J. Yap: What qualifications does the minister have to decide protocol and limits of health care practitioners?

Hon. D. Eby: Mr. Chair, I understand the member is reading a list of questions. It would be helpful if he listened to the answers, because the same answers are being given again and again. The regulations are approved by cabinet. Cabinet approves all kinds of regulations where they’re not expert, and they’re reliant on experts and the advice of and consultation with experts. This regulation proposal is no different, except that in this situation, we are relying on the expertise of medical professionals.

J. Yap: I’m glad the minister referred to cabinet making all kinds of decisions. How is cabinet uniquely qualified to decide the protocol and limits of health care practitioners?

Hon. D. Eby: Cabinet makes a lot of decisions about very technical regulations in which they may not be expert. They are reliant on the advice of experts and consultation with experts. The member knows — because I’ve said this a bunch of times — that we are consulting with medical professionals to advise us on the most appropriate protocols.

J. Yap: Does the minister believe it is fair that he has the power over treatment plans for minor injuries, the number of treatments for minor injuries and the types of treatments for minor injuries?

Hon. D. Eby: Again, absolute nonsense. I’ve clarified and corrected the member several times. I won’t do it again.

J. Yap: Can the minister, in the same section, tell us how he is qualified, under regulation, to prescribe different numbers or types of treatment for different circumstances?

Hon. D. Eby: I feel like I’m interacting with a pre-recorded set of questions here. I have provided this answer several times. I’ll provide it again to the member.

[5:05 p.m.]

The regulations are set by cabinet. The regulations, like many regulations, are technical and rely on the expertise of people — in this case, medical experts and service providers of various medical treatments.

M. Lee: I just wanted to ask in respect to subsection 104(1)(n)(i)(A). This appears to read as follows in terms of the ability of a regulation being made establishing “amount of damages…in which a claimant suffers a minor injury and an injury that is not minor.” I would like the Attorney General to clarify the reason why the words “an injury that is not minor” are included in this specific provision.

Hon. D. Eby: You might have a situation where a person has two injuries arising from a motor vehicle accident: a minor injury and an injury that is not minor. An example would be someone who has minor whiplash, a WAD 1, and they have a broken arm. This regulation-making power creates the possibility where there might be a limit on the minor injury, the whiplash WAD 1 injury, and no cap on the injury that is not minor — that you could potentially have a regulation that would separate these two.

M. Lee: If I read this through, it’s suggesting that an amount of damages can be established for a minor injury and an injury that is not minor. So if there is an accident where there are two types of injuries — if I heard the Attorney General correctly — this would suggest that there’ll be one amount for a minor injury and another amount established for an injury that is not minor. Is that correct?

Hon. D. Eby: No, it’s not correct. The regulation would only govern the amount of non-pecuniary damages for the minor injury, not for the major injury.

M. Lee: Well, I guess that that would stand to reason, under the nature of this act, but just the way it’s worded would suggest that it’s unclear. As to what is being…. In terms of the reg-making power in this section, because it does refer to “and,” is there not need for clarity on this provision?

Hon. D. Eby: I’ll walk the member through the text. This section creates the ability to create regulations “respecting damages for non-pecuniary loss for a minor injury.” Non-pecuniary means a pain and suffering award, so it’s not your out-of-pocket costs. This is the recognition that you’ve had an injury. So a regulation “respecting damages for non-pecuniary” — that’s what we’ve been talking about — “loss for a minor injury….” Minor injury — we’ve spent some time on that definition.

That is the regulation-making power. It doesn’t include non-minor injuries. You’ll see that. That includes “without limitation” — because it may be that if you read that, you would think that this is only for where the person suffers only a minor injury. Then you could make regulations for only that situation. But someone might have a minor injury and an injury that doesn’t fall within the minor category — so then: “(i) an amount of damages or a limit on damages for a minor injury arising from an accident in which a claimant suffers a minor injury and an injury that is not minor.”

So even in the situation where someone has a minor injury and an injury that’s not minor, there is still a regulation-making power to govern the non-pecuniary damages for that minor injury.

[5:10 p.m.]

J. Yap: This section also grants the minister power over referrals. I wonder if the minister can explain the rationale and the intent here.

Hon. D. Eby: I can only think that the member is refusing to acknowledge the text of the bill, which is very clear: it does not grant me, or the person in the role of Attorney General, or a minister responsible for ICBC, any powers.

J. Yap: Again to the minister, the section gives him the ability to prescribe a class of persons. What is the intent with this?

Hon. D. Eby: It does not do that, Mr. Chair.

[5:15 p.m.]

Section 29 approved on the following division:

YEAS — 42
Kahlon	Begg	Brar
Heyman	Donaldson	Mungall
Bains	Chen	Popham
Trevena	Sims	Chow
Kang	Simons	D’Eith
Routley	Ma	Elmore
Dean	Routledge	Singh
Leonard	Darcy	Simpson
Robinson	Farnworth	Horgan
James	Eby	Dix
Ralston	Mark	Fleming
Conroy	Fraser	Chandra Herbert
Rice	Krog	Furstenau
Weaver	Olsen	Glumac
NAYS — 34
Cadieux	de Jong	Bond
Polak	Lee	Stone
Coleman	Paton	Ashton
Barnett	Yap	Martin
Kyllo	Isaacs	Morris
Stilwell	Ross	Oakes
Johal	Redies	Rustad
Milobar	Clovechok	Shypitka
Hunt	Tegart	Stewart
Sultan	Gibson	Reid
Letnick	Thomson	Larson
	Foster

On section 30.

[5:20 p.m.]

J. Yap: In this section, under section 105(2)(a), there’s a power to make regulations. Can the minister tell us who he foresees being exempted from this act or regulations under this act?

Hon. D. Eby: There’s an existing regulation power that’s under 94(2)(a), moved to a different section of the act. There is no current contemplation of exempting a person or a class of persons.

J. Yap: Can the minister tell us what the intent is of being able to define words or expressions used but not defined in the act?

Hon. D. Eby: This is, again, a previously existing power under the previous act. But it would be used for things like…. We talked about psychological or psychiatric injury and narrowing that term. That’s an example of where it might be used.

J. Yap: Just to be clear, why did the minister give himself this arbitrary power to decide what the definition of a given word should mean?

Hon. D. Eby: I didn’t.

J. Yap: What will be the minister’s guide in determining definitions?

Hon. D. Eby: It’s the same as ever. We talk to experts in the relevant area, consult with them and prepare regulations accordingly that serve the public interest.

J. Yap: What portions of this act does the minister foresee delegating provisions to ICBC?

Hon. D. Eby: The existing regulations provide ICBC with the ability to provide payments at ICBC’s sole discretion — for example, ex gratia payments. The drafter thought that we would do well to include this in here to be clear about the legislative authority for ICBC to make such payments.

J. Yap: I appreciate that. Can the minister tell us what circumstances would be required to do that?

[5:25 p.m.]

Hon. D. Eby: This is about things that ICBC can unilaterally provide to people under the existing regulations and the concern that there wasn’t a legislative head of authority to establish those regulations. There are no new abilities of ICBC contemplated at this time.

M. Lee: Just to clarify, in terms of what ICBC, unilaterally, can provide to claimants, can the Attorney General just describe what those things are?

Hon. D. Eby: Subsection 88(2)(f) talks about “funds for any other costs the corporation,” being ICBC, “in its sole discretion, agrees to pay.” When the drafter looked at that regulation, the drafter thought: “Where is the legislative authority for that regulation to make these kinds of payments?” And the drafter thought we would do well to include a provision that makes it explicit that we are able to delegate authority like that to ICBC, and that’s what the section does.

J. Yap: Does the minister not believe ICBC would have a vested interest in creating and changing regulations under the act?

Hon. D. Eby: The member is demonstrating a real lack of understanding about how regulations are made. They’re made by a Lieutenant-Governor-in-Council under this act and generally.

J. Yap: What kind of consultation or transparency process would take place in such an event to ensure such regulations are created, implemented and administered fairly in the interests of all parties?

Hon. D. Eby: There are no such regulations. ICBC can’t make regulations.

J. Yap: Under transitional regulations, why did the minister give himself the blank cheque provision to make provisions and changes anywhere he likes through regulations with respect to this act?

Hon. D. Eby: I didn’t.

J. Yap: Does the minister not believe that such power is too much for a minister to wield over such an important piece of legislation?

Hon. D. Eby: I would agree. That’s why it doesn’t do that.

J. Yap: Should sweeping changes to this piece of legislation not be brought before this place, the Legislature, for proper transparency and debate and not be decided in the cabinet room?

Hon. D. Eby: Regulations, generally, are decided by a Lieutenant-Governor-in-Council as a cabinet. The members can bring any matter that they wish to this place for debate, whether in question period or other opportunities.

M. Lee: I appreciate the responses by the Attorney General.

Can I ask, though, in terms of the scope of the specific provision as a transitional regulation under subsection 106(1)(a), that “the Lieutenant Governor in Council may make regulations as follows: (a) respecting any matter that the Lieutenant Governor in Council considers is not provided for, or is not sufficiently provided for, in this Act….”?

Earlier, we were having discussions at the committee level as to the wide-sweeping nature of this minor injury bill. Under the circumstances, given the nature of the number of regulations, the definition to be defined through the consultations, how are British Columbians supposed to look at this particular provision in the context of what remains to be defined under this bill?

Hon. D. Eby: The member will note the heading “Transitional regulations.” This section relates to transitional regulations between the old system and the new system and only to transitional regulations to ease the transition between the two systems.

The member will note a safeguard in subsection (4) that: “This section and any regulations made under this section are repealed on April 1, 2021 or on an earlier date prescribed.”

M. Lee: I appreciate that there are transitional regulation-making powers under 106(1)(a) and the time period that’s specified in 106(4). But of course, April 1, 2021, is close to three years from now. That is still a period of time in which….

[5:30 p.m.]

This is a long transition in which, with the implementation of a new minor injury regime, there’s quite a bit of room, let’s say, in terms of what can be done under this provision. That’s a concern. So even if this will be under review, of course, under sub (4), that would be the concern that we have here regarding what’s going to happen over the next three years.

Hon. D. Eby: The member is reminded that the act comes into force on April 1, 2019. The transitional regulation-making authority under the act, when it would come into force, allows for temporary regulations to address any deficiencies in the legislation or transitional difficulties and for that purpose alone.

The act itself would then need to be amended by April 1, 2021. If the government failed to do so, the transitional amendments would be repealed, as is this section by that date.

M. Lee: I appreciate that clarification.

For the two-year period, it would be clearer to have that specified in terms of the section 106(1)(a) — that apart from the heading itself, we’re talking about any matters of a transitional nature.

Hon. D. Eby: I misspoke earlier in my answer when I said that the act doesn’t come into force until April 1, 2019. That was in reference to the minor injury definitions and applicable sections. Sections 83, 84 and 94(1)(d) of the Insurance (Vehicle) Act, proposed here, will apply on or after the date this act receives royal assent. I just wanted to clarify that.

The transitional regulation provisions are intended to provide the ability to ensure a smooth transition between the two systems, the old system and the new system. They exclusively provide authority for transitional regulations, not for anything else.

J. Yap: Under 106(2) of the transitional regulations, what could the minister foresee being brought in retroactively?

Hon. D. Eby: If there was something in the act that was missed that would have to take effect at the same time as everything else in the act, then that would be the intent behind that retroactive application — if there was something that caused the whole thing to not work the way intended because it was a technical oversight. It would be made retroactive to the date that the act came into force. That’s the intention behind that rule-making power.

J. Yap: Can the minister tell us if he has any plans to make anything outside of the definitions of accident, benefits, occurrence and corporation retroactive?

Hon. D. Eby: This is a transitional regulation. It, like the other ones that we’ve discussed, relates to transitional provisions between the old system and the new system.

If you read this just out on its own, you might think: “Oh, I see. There’s some intention to apply the new minor injury definitions retroactively.” Not the case. They’ll apply on a go-forward basis from April 1, 2019, so for collisions taking place on or after that date.

There is, though, an initiative that’s in an upcoming section related to the increase in benefits for people catastrophically injured. The lifetime benefits of $300,000 will be retroactive to January 1, 2018, because we believe that as soon as we can get that into place, we should.

J. Yap: Can the minister please tell us what impact, if any, these changes of retroactivity will have on victims currently in the claims process?

Hon. D. Eby: None. The intent here would be retroactive to the date the act’s other sections are all coming into force. That is, if we missed something technical that we needed to make sure was in there to ensure that the act worked properly, then we would have it come into force on the same day that the rest of the provisions did of the act.

[5:35 p.m.]

The member is fundamentally misunderstanding this section if he thinks that this is somehow applying to existing claims that might result from collisions that have taken place.

J. Yap: Just to clear up any misunderstanding I may have, can the minister commit today that the caps will not be made retroactive?

Hon. D. Eby: Several times, and I’ll repeat it now, I’ve been clear that the act comes into force on April 1, 2019, with respect to getting minor injuries out of B.C. Supreme Court and the limit on pain and suffering awards for minor injuries.

J. Yap: I just want to be clear. The minister did confirm that the retroactivity does not allow for…. The minister will confirm that the caps will not be made retroactive.

Hon. D. Eby: Any collision up till April 1, 2019, is under the old system, and any collision April 1, 2019 and forward is under the new system. I hope that’s clear enough.

Sections 30 to 36 inclusive approved.

Title approved.

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

[5:40 p.m.]

Motion approved on the following division:

YEAS — 42
Kahlon	Begg	Brar
Heyman	Donaldson	Mungall
Bains	Chen	Popham
Trevena	Sims	Chow
Kang	Simons	D’Eith
Routley	Ma	Elmore
Dean	Routledge	Singh
Leonard	Darcy	Simpson
Robinson	Farnworth	Horgan
James	Eby	Dix
Ralston	Mark	Fleming
Conroy	Fraser	Chandra Herbert
Rice	Krog	Furstenau
Weaver	Olsen	Glumac
NAYS — 33
Cadieux	de Jong	Bond
Polak	Lee	Stone
Coleman	Paton	Ashton
Barnett	Yap	Martin
Kyllo	Isaacs	Morris
Stilwell	Oakes	Johal
Redies	Rustad	Milobar
Clovechok	Shypitka	Hunt
Tegart	Stewart	Sultan
Gibson	Reid	Letnick
Thomson	Larson	Foster

The committee rose at 5:44 p.m.

The House resumed; Mr. Speaker in the chair.

[5:45 p.m. - 5:50 p.m.]

Report and
Third Reading of Bills

BILL 20 — INSURANCE (VEHICLE)
AMENDMENT ACT, 2018

Bill 20, Insurance (Vehicle) Amendment Act, 2018, reported complete without amendment, read a third time and passed on the following division:

YEAS — 43
Chouhan	Kahlon	Begg
Brar	Heyman	Donaldson
Mungall	Bains	Chen
Popham	Trevena	Sims
Chow	Kang	Simons
D’Eith	Routley	Ma
Elmore	Dean	Routledge
Singh	Leonard	Darcy
Simpson	Robinson	Farnworth
Horgan	James	Eby
Dix	Ralston	Mark
Fleming	Conroy	Fraser
Chandra Herbert	Rice	Krog
Furstenau	Weaver	Olsen
	Glumac
NAYS — 31
Cadieux	de Jong	Bond
Polak	Lee	Stone
Coleman	Paton	Ashton
Barnett	Yap	Kyllo
Isaacs	Morris	Stilwell
Oakes	Johal	Redies
Rustad	Milobar	Shypitka
Hunt	Tegart	Stewart
Sultan	Gibson	Reid
Letnick	Thomson	Larson
	Foster

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

Hon. M. Farnworth: We’ve got five minutes left, so I call second reading on…. [Laughter.]

No? Okay, I move the House do now adjourn.

Hon. M. Farnworth moved adjournment of the House.

Motion approved.

Mr. Speaker: This House stands adjourned until 10 a.m. Monday morning.

The House adjourned at 5:52 p.m.