Orders of the Day

Hon. M. Farnworth: I call committee stage on Bill 9.

[1:35 p.m.]

Committee of the Whole House

BILL 9 — EVIDENCE AMENDMENT ACT, 2020

(continued)

The House in Committee of the Whole (Section B) on Bill 9; S. Gibson in the chair.

The committee met at 1:36 p.m.

On section 1 as amended (continued).

M. Lee: Just before the break, we were having a discussion regarding the discretion that is utilized under and available to the courts under subsection 12.1(6) as set out in section 1 of this bill. I wanted to come back to the suggestion by the Attorney General that, as I understand it, that discretion makes it such that it is unknown as to what the cost savings from the effect of implementing this bill will be.

I would like to ask the Attorney General just to outline how that discretionary provision works against section 9, which sets out the limits around the $3,000 per expert report, the 5 percent cap on disbursements, as may well be set, and the number of experts.

Hon. D. Eby: To be clear, the $3,000 and 5 percent numbers are not finalized. We’re still engaging in work. Those numbers may change. They will be set by regulation, which is also, obviously, part of the uncertainty. But that is not the significant piece.

The significant piece. In the previous bill that was struck, there was an absolute limit on the number of experts, which made it a matter of math to determine how many cases are going forward, what number of expert witnesses are allowed by the rule for recovery and what the expected savings are. When you introduce discretion, and this bill does introduce discretion for the court, it’s difficult to know how many additional witnesses and in what circumstances and how the courts will apply this test.

[1:40 p.m.]

We’ll wait and see how the courts apply the test — how the justices apply the test — that’s set out here. Once we have an idea about how that is rolling out, then it’ll be easier to provide projections around potential savings for British Columbians and improvements and efficiencies around the court system. Right now it is just not sufficiently certain to be able to provide those projections, so I’m unable to do so.

M. Lee: I wanted to note, though, that when we’re talking about cost savings from implementing this bill, clearly, the three restrictions that are set out under section 12.1(9), relating to cost per expert report cap on disbursements and the number of experts…. Certainly, in the instance of the first two items, as we understand that government is considering a $3,000 limit per expert report and a 5 percent cap on recovery in terms of what can be recovered in disbursements, those in themselves are cost items. Under section 12.1(9), as the Attorney General just indicated, that is to be set by regulation.

I would also point out that under section 12.1(10) of section 1 of this bill, there is, further to that, that anything that is set by way of regulation under that subsection (9) that is inconsistent with the rules of court will have those regulations prevail. So there is no discretion. There’s no discretion for the courts in terms of the dollar figure per expert report that is going to be set by regulation, whatever that amount might be. There is no discretion by the court in terms of the amount of disbursements that might be recoverable. Again, we understand the government is contemplating it to be capped at 5 percent.

There is no discretion. The regulations will trump the rules of court. So I still find it surprising that the Attorney General is indicating, in this part of our committee discussion, that it’s only a hope that there will be cost savings from this bill. It just raises another question that I’d ask to the Attorney General as to what the purpose of this bill is.

Hon. D. Eby: I’m not sure how many ways I can say the same thing. I’ll do my best to say it differently, but it will be the same answer. The fact that we don’t know how the court is going to use this tool that we’re giving them, in terms of exercising their discretion about the number of expert witnesses that will be allowed, makes it uncertain what savings, if any, will flow from this. We’re hopeful. The reason for this bill is…. It’s either version 1.1 or 2.0 of an attempt to get expert costs under control in the courts. Now, this is not clear to me, in terms of the opposition critic, whether he understands or believes that there is an issue with expert costs and expert reports in the court.

[1:45 p.m.]

I think there is a fairly significant consensus that there is a serious issue on both the plaintiff and defence side of this adversarial expert culture driving costs and not assisting the courts proportionate to the cost that they bring to the system. Our hope is that we provide this tool to the courts, and the justices are able to use it to address this issue. It’s another tool that they have.

But we can’t predict that. We can’t predict what it will look like. As a result, any projected savings would be, at best, a guess. It’s not something that you can build a financial projection around for ICBC, for government or for anybody going to court, because it requires the court to wrestle with how they’re going to apply this test.

Once it’s been through a number of hearings, then we’ll start to have an idea about how the courts are planning on applying this test and what it’s going to look like. We may be able to make some projections based on that, but at this stage, it’s premature.

M. Lee: Well, I heard in the Attorney General’s response that it is with the view to get expert costs under control. The significant limitations around the way in which injured British Columbians can bring forward and retain experts to support their claim for recovery…. Certainly that is being restricted and limited. That is where the balance lies, in terms of what the benefit is of imposing these strict restrictions against the cost of a different sort to British Columbians, which is their rights — their rights to be able to have access to justice, to be able to bring forward a full claim for recovery.

That brings me back to the statement that I’ve read out here in this committee process, where we have a senior leader in the management team of ICBC indicating that of the $400 million of expected savings on the rule 11-8 change, half of that amount would be due to lower payments for damages. More expert reports make claims more expensive.

Apart from getting expert reports under control in terms of the number and the cost, what this bill is also doing…. At least, if we follow the line of presentation that was there on the rule 11-8 proceeding, it is an attempt to reduce the amount of claims, because again, more expert reports make claims more expensive. That’s the statement of ICBC.

Again to the Attorney General, is he not concerned about the trade-off that is occurring in this Bill 9? Literally, if it’s a hope that costs may reduce…. We’re not just talking about costs of the expert reports. We’re talking about costs of what ICBC will pay out to successful injured British Columbians in court. I ask the Attorney General: is he not concerned that this bill has a different cost attached to it, in terms of the rights of injured British Columbians?

[1:50 p.m.]

Hon. D. Eby: So it’s pretty clear. The new subsection 12.1(6) — that the court is encouraged to exercise its discretion, to determine whether or not the additional expert witness, beyond the limit — will do two things. One, will it bring new information that wasn’t otherwise available to the plaintiff? If not, then no extra witness. The second piece is that if we don’t allow this witness to provide this evidence, will it provide prejudice disproportionate to the benefit of not increasing the complexity and cost of the proceeding?

In other words, experts bring cost to hearings. They bring additional complexity. Given the value of the claim and the situation in front of the court, is it more unfair to allow the expert or to disallow the expert? What is the benefit that is brought compared to the cost of allowing additional experts?

I have confidence that the courts can do this work and ensure fair proceedings in front of them. The test is right there. If it’s going to be disproportionately prejudicial to the person who’s not allowed to bring the expert report forward, the court will allow them to bring the expert report forward. If it’s not, if it just increases cost and complexity, the court will say: “No. Sorry. Even though this issue wasn’t covered, you’re not allowed to bring an additional expert report.”

I’m hopeful the courts will use this tool and will make those inquiries. They have this test now. They have this discretion to make these determinations. I’m not sure that reading quotes from the other bill, when there was no discretion, one that we agree the courts have rejected…. Chief Justice Hinkson’s reasons were clear. The reason was there wasn’t discretion, in large part — one of the reasons why he rejected that law. Here is the test. Here is the discretion to prevent unfairness to a party in a vehicle injury proceeding.

M. Lee: We’re spending some time on this balance. At least I see, in this bill, the need for that. I’m still not hearing from the Attorney General about any consideration or concern about access. We have canvassed, in the previous committee, the challenges with these new restrictions, including how that discretion of the court will be met and worked through.

This is what I have continued to raise concern about. It’s the utilization of the roles that the Attorney General plays, which are, again, focused on cost; focused on reducing the number of experts, costs around those experts; the disbursements that a plaintiff, an injured British Columbian, will be entitled to recover — to be limited on the total amount of recovery of that claim.

This is where there has been a real confluence of the roles that he plays, at the detriment of the rights of injured British Columbians. Because, clearly, this bill is about managing experts and their costs. But fundamentally, that is more than likely to be for the benefit of ICBC as the chief litigant of this province — the one entity for whom litigation, through our court system, is involving as a defendant.

[1:55 p.m.]

Yet the Attorney General is able to utilize his other mandate, which is to protect the rule of law, the rights of British Columbians, and is bringing forward an amendment that will reduce that. That’s where the trade-off becomes, and that’s where the conflict lies.

As we’re having this discussion about costs, I hear the Attorney General state that it’s no longer estimated cost savings from this bill; it’s a hope. I get the point about discretion, but as we’ve just talked about, that discretion doesn’t apply, again, to the costs per expert report or the percentage of limitation on disbursements. There’s no discretion there. The regulations will trump or prevail. So this is where my concern lies in this bill, coming forward in this manner.

As I have stated on Bill 11, as well, I believe that there is no proper consideration for the rights of British Columbians when this bill comes forward in this manner. We have talked about many elements of the bill, and more to come in this committee stage. But this is my concern in terms of the impact that this bill is having on the rights of British Columbians.

Let me say that, as we look at an area of the bill that the Attorney General had brought forward, we talked about the 5 percent limit and where that limit, in terms of the data supporting it, is based on data that ICBC has available, which is 70 percent of the body injury claims. So let me ask, first, to the Attorney General: is there any other precedent for the imposition of a 5 percent limit or a percentage limit on disbursement recovery anywhere in Canada?

The Chair: Attorney General.

Hon. D. Eby: Hello, Mr. Chair. Thank you for the chance to respond.

A lot there from the critic, and sort of a bit of a speech before the question. The answer to the question is: no, not anywhere that we’re aware of in Canada.

With respect to his comments, I…. The implication, although he’s not said it, of the member’s speeches and remarks is that he supports an unlimited number of expert witnesses in motor vehicle collision litigation, regardless of the cost, regardless of duplication of evidence between witnesses, regardless of expert shopping and all the issues that have been identified — the polarization; the expense and complexity; the problems with access to justice identified by Chief Justice Brenner and Allan Seckel in their report, by commentators in the United Kingdom and by commentators in Australia that led to very significant restrictions on expert witnesses in those jurisdictions.

I think it’s one thing to stand up and ask questions about the act, which is the important and critical role of the opposition here. I think it’s quite another to suggest impropriety in putting limits in place on experts following common-law jurisdictions around the world, following the comments of a former chief justice and a former Deputy Attorney General under the B.C. Liberals and then chief of staff — still a very respected person, who is doing work for this government right now at the cross-jurisdictional COVID advisory team.

You know, all these people say there’s a problem with expert reports. You need to get them under control. We have a bill in front of this House that proposes to do that. The member suggests that it’s improper that this came forward because I am the minister for both ICBC and the Attorney General.

[2:00 p.m.]

I’ll just leave it at that, I think. If it is the member’s position that the role of Attorney General is to turn a blind eye to a serious issue around expert reports in our court system in order to preserve the existing system exactly as it is, then I’ll have to disagree with him. I don’t believe that’s the role.

Many Attorneys General, including some that served under B.C. Liberal governments, would probably disagree with that too. I know that at least one Deputy Attorney General would disagree. I’m not quite sure what his position is, in terms of expert witnesses. But I guess it doesn’t matter, because it’s important to ask the questions. The questions, I believe, are fully answered by subsection 12.1(6), which allows the court to allow additional experts in order to prevent unfairness to any party.

M. Lee: Clearly, an Attorney General of this province needs to protect, preserve and sustain the proper administration of justice for our province. My challenge is not with that role.

My challenge is the Premier, quite frankly, putting the member from Point Grey in the dual role of being both the Attorney General — to do what I just said and as the Attorney General described in his response — and also with a mandate first to do a review of the cost structure of ICBC. That is effectively what the Premier asked the Attorney General to do. But what has happened here, of course, beyond the review, has been a series of reforms. This is one of them.

This has been driven out of a need to reduce costs for ICBC in that cost saving. While we all want to make life more affordable and are concerned about ICBC rates and the model it has in place, the Attorney General has a specific role. That primary role is to protect the rights of injured British Columbians. My concern with the bill is the overall framing of the bill and the conflict between those two roles.

Let me just come back to the 5 percent limit. The Attorney General indicated that there is no other precedent in Canada for this 5 percent limit. This is an additional restriction, beyond limiting the number of experts, which is, again, what rule 11-8 did — ruled unconstitutional. “Okay, put some discretion in, in this bill.” This is beyond that. This now goes to imposing a limitation. When we look at the role of that 5 percent limit, in the previous committee process the Attorney General indicated, based on the data maintained by ICBC, that 70 percent of the claims are falling within that 5 percent.

What the Attorney General stated is that for those remaining 30 percent, there are a number of potential explanations of why they’re outliers. When I asked what the ICBC reimbursement typically is for disbursements on those 30 percent of cases excluded, the Attorney General said that we don’t have those numbers.

[2:05 p.m.]

Does the Attorney General, since early March, have those numbers available, in terms of what the level of ICBC reimbursement is for the other 30 percent of cases?

Hon. D. Eby: I do have those numbers. For files with a value of less than $100,000, 28 percent of them exceeded that 5 percent standard. Of files worth between $100,000 and $200,000, 70 percent of them exceeded that 5 percent standard. Of files $200,000 to $1 million, 65 percent of them exceeded that 5 percent standard. Of those over $1 million, 25 percent of them exceeded that 5 percent standard.

I would like to underline for the member that no final decision has been made about the 5 percent amount or about the per-expert-report amount. That’s still a live discussion within the ministry, but I think the numbers show some trends for him, of the files that exceed that 5 percent standard.

I do want to just briefly respond to the member’s suggestion that because ICBC is involved in litigation, it’s improper for me to be tabling this bill. I wonder what he thought when I tabled the opioid litigation bill, when he voted for it — which set out the rules for litigation around opioid manufacturers and distributors, the class-action litigation that’s underway where Ministry of Attorney General lawyers will be litigating that according to the rules that were set out in that bill.

I wonder what he thinks about the fact that the Attorney General is the head lawyer for civil litigation in the province and that any change to any process in court, through the Evidence Act or otherwise, would inherently have impacts on quite an extensive portfolio of civil litigation involving the government. Under the member’s logic, the Attorney General could not take any action in relation to our court system. Anyway, I’ll leave that where it is.

I certainly encourage the member if he has some thoughts about the appropriate percentage of the value of a claim, as a limit for recoverable disbursements or for expert reports. I’d be glad to hear them. As I say, this is an ongoing discussion and ongoing policy analysis happening within the ministry about what an appropriate and fair level should be.

M. Lee: Thank you to the Attorney General and his team for sharing that level of detail around the breakdown. I’m recognizing that the disbursement cap has not been set by regulation. I do acknowledge that again, certainly.

[2:10 p.m.]

Just so I understand the numbers that were provided, for the 30 percent of cases that would be excluded from the other data that was provided…. We’ve got a situation where one set of data indicates that 70 percent of cases fall, generally speaking, under the 5 percent level. Of the remaining 30 percent…. The Attorney General has read into the record what the general breakdown of those cases would be, depending on the dollar value involved with those cases.

I would just ask for clarity on the initial set of 70 percent of claims. How many of those claims would actually have no disbursements charged at all because they don’t end up retaining a lawyer or going forward to trial?

Hon. D. Eby: The data set that we’re working with here is the files where ICBC has actually paid out disbursements to a party. There is no data available to me immediately, at least, and possibly at all — I’m not sure; I’ll try to find out — about zero disbursement files.

Of those files where disbursements were paid out by ICBC, I can advise the member that 55 percent of files were below 4 percent of the settlement value, and 10 percent were between 4 to 6 percent. The 1 percent of payments to the Crown are not included in this. So 4 to 5 percent.

The effect of this is that the majority of cases come in under that 5 percent threshold. Again, not determinative for us, in terms of where that will be set, but certainly instructive of where these files are.

M. Lee: I just wanted to note the Attorney General’s previous response. I certainly recognize the role of the Attorney General, including within this Legislative Assembly and for cabinet and government, as the chief legal officer reviewing legislation that comes forward, including the opioid recovery act and other legislation that the Attorney General mentioned in his response.

[2:15 p.m.]

What I’m referring to, of course, are the specific roles that the Premier has given and assigned to him, which involve, as well, not only the ministerial responsibilities but the overall management of this particular Crown corp.

With the level of political discourse that has occurred in this province over the last several years…. We’re not talking about a particular set of rules in one case, unless we’re talking about this particular bill. We’re talking about a whole series of initiatives and reforms that this Attorney General has brought forward for the benefit of ICBC. I think it is hard for British Columbians to distinguish, at times, which role the Attorney General is playing and the conflict between the roles. That’s what I’m certainly challenged with.

Let me say, then, that in terms of the information that the Attorney General is providing, when I look at the report of ICBC entitled Impacts of COVID-19 Pandemic on ICBC dated May 14, 2020…. On page 7 of that report, under the heading “Other financial risks: prior year claims, Evidence Act legislation and court challenges” — hence Bill 9 — there is a paragraph that states:

“The pandemic has also resulted in a delay to the provincial government’s proposed changes to the Evidence Act,” vis-à-vis Bill 9. “The changes would have helped ICBC mitigate some of the impact from a B.C. Supreme Court decision in October 2019,” which we’ve been discussing here as the Crowder decision, “that resulted in previously recognized savings coming from a limit on expert witnesses and reports, now being reversed,” as ruled unconstitutional. “The legislative and supporting regulatory changes under the Evidence Act did not pass by March 31, 2020, as expected. As a result, ICBC could not recognize the associated claims cost savings in fiscal 2019-20.”

The Attorney General earlier indicated that it hasn’t been recognized, which is consistent with what this says. But there is an expectation that if by March 31, 2020, that legislation had passed in this House — but for the COVID-19 pandemic — there would have been cost savings that would have been recognized in the fiscal 2019-2020 period for ICBC.

Between the time that we stopped in our committee stage on March 4 or 5, and the need for the fiscal period to set in place those cost savings, was there not an assessment of the projected cost savings due to the change to the Evidence Act by virtue of this Bill 19, as Bill 9, as this statement seems to indicate?

Hon. D. Eby: Yes, there was an assessment. The assessment was that the savings are too uncertain to provide any financial level of comfort that the numbers could be relied on. We’ve explained it to him several times. Happy to explain it again. No projection of savings from this bill has been included in ICBC’s financial projections because of the uncertainty that followed from the assessment of the potential impact of this bill.

M. Lee: I heard the Attorney General’s response. I will just point out that the statement that I read made no indication of that. The only indication in ICBC’s report to the public is that the legislative and supporting regulatory changes, under the Evidence Act, did not pass by March 31 as expected. As a result, ICBC could not recognize the associated claims cost savings in fiscal 2019-20.

[2:20 p.m.]

Does this statement, which is in an ICBC document…? Does the Attorney General actually agree with that statement, or is it incorrect?

Hon. D. Eby: I mean, it’s a partial explanation. The bill didn’t pass, so certainly no financial projections could be based on it. But it’s not a complete explanation. The complete explanation is that there is just insufficient financial certainty around the impact of the bill to project savings from it.

M. Lee: I understand from the Attorney General’s response that it is a partial explanation that was indicated in the ICBC report, as opposed to a full explanation. The Attorney General is giving that explanation to us here, as I stand to understand that.

It does beg the question. In the future, after this bill passes, if it does, in this House, will ICBC recognize any associated claims’ cost savings in its fiscal periods?

Hon. D. Eby: It’s certainly our hope that there will be savings and efficiencies, not just for ICBC but generally in the system, that flow from this. But as I said, the total value of those, or even whether they will materialize at all, is too uncertain, given the discretion that’s in this bill. Our hope is that the courts will use this tool, as they see appropriate, to restrain some of the excesses in expert reports that we’ve seen on all sides, but that remains to be seen. My hope is yes, but we’ll see.

Once there is a sufficient level of jurisprudence involving this new test and the discretion, it is certainly possible that ICBC could use that actuarial information to project what things are going to look like in the future, which is the job of a significant number of people over in the insurance company there. But at this stage, it’s just too uncertain.

M. Lee: I just wanted to come to some statements that the Attorney General made in committee stage back on March 5.

We were discussing the impact of these changes to, for example, plaintiffs who have lower incomes. The Attorney General indicated, in response to one of my questions, that the consideration for someone who is low income is that it’s really important for them to resolve the dispute as quickly as possible and to settle it.

I wanted to clarify the Attorney General’s view on this, in terms of the importance for people who have lower incomes to resolve their disputes quickly, as soon as possible, under this potential cap on disbursements at 5 percent or any other level.

How does the Attorney General see the working of contingency arrangements in this regard, where, as we understand, the personal injury lawyers who enter into contingency fee arrangements with their clients, regardless of the length of the proceeding, their charge is the same?

[2:25 p.m.]

I ask the Attorney General: is the Attorney General not concerned that this disbursement limit will actually limit the ability of individuals who have lower incomes to actually maximize their amount of recovery?

Hon. D. Eby: I think the member will find, if he’s interested in contingency fees and concerns, that certainly I share it with him, about how they operate. He may be interested in the pre-litigation payment initiative that’s in Bill 11, which recognizes that in many cases, ICBC has no dispute over a certain amount of payment to an individual. There is an amount above that that is in dispute. A litigation claim could materialize for someone or not, depending on how the litigation goes. But that is the section that should be subject to the contingency fee, not the amount that everyone agrees the person’s entitled to.

With the pre-litigation payment initiative, ICBC can pay the amount that is not under dispute. Because it is paid in advance of a lawyer being retained and without any prejudice to the person who accepts the payment, a couple things will happen.

One is it won’t be subject to a contingency fee. Two is if they decide to go to litigation, they have money in hand and they are able to use that to resource additional claim activity if they want to do that. They don’t have to borrow money from their lawyer at a 10 percent interest rate, which is a shocking practice that I did not know was happening in the province until I took on this job — that lawyers were lending money to their clients in this way.

Obviously, it’s all evidence, in my opinion, that the current system is not a great one and why we are shifting, in May, to a significant reform of this system — one that will not depend on whether or not a person can borrow money from their lawyer to endure a multi-year court battle to access money they’re entitled to and where they won’t have their own insurance company hiring a lawyer for the at-fault driver to fight them in court. But I digress.

I don’t believe that there is any impact of this proposal on contingency fees received by personal injury lawyers or paid by clients out of their settlement, if that was the member’s question as I understand it. There is no impact of this bill on contingency fees. That’s Bill 11.

M. Lee: I certainly look forward to continuing the discussion regarding pre-litigation payments in the context of Bill 11 to come. Of course with Bill 9, not knowing the status of Bill 11, we’re talking about this particular set of changes and the impact it will have on people of low income and the fact that because of the significant retroactive effect of this bill, we’re also talking about claims that have already been in process to date. But we will come to that.

My question, and concern, is around the concept that the Attorney General seems to be indicating — that the faster we get individuals through the court process or the pre-litigation process, through settlement or otherwise, the better for them. I don’t disagree with that.

But for those plaintiffs, injured British Columbians, who are currently or in the future, in the absence of Bill 11 passing, in contingency fee arrangements with their lawyers representing their interests, there is no change and no difference to the speed aspect. I just wanted to clarify that one point, but then go on to say this.

[2:30 p.m.]

When we look at this disbursement rule again under subsection 12.1(9), if an individual is a person who has a lower income versus a person who has a higher income, the 5 percent disbursement limit for the purpose of discussion here will actually act to limit the ability of that lower-income individual to seek recovery of their disbursements. It has, actually, a disproportionate effect.

[R. Chouhan in the chair.]

An individual who is seeking compensation for their full loss, who is making less income to an individual who is, will have less of an ability to fully recover their disbursements in the action, by virtue of this 5 percent cap. Is the Attorney General concerned about any disproportionate effect on plaintiffs or claimants who have different levels of income?

Hon. D. Eby: We’re committed to getting the number right in terms of the recoverable disbursement, the percentage of the overall claim and the value of the expert reports. The impact on all plaintiffs will be the same. If they go over the limits, when they’re set, they will not be recoverable disbursements. They will come out of the settlement amount. It won’t matter what the person’s income is.

If the member is asking whether, under the current tort-based auto insurance system, someone with more resources, more income has a better time of it than someone with less income and less resources, I think that is indisputably true. It’s unfortunately true in our court system generally. It’s not particular to auto tort claims. It’s something that, through legal aid reforms and through other justice reforms around access to justice, we’ve tried to take some of the rough edges off.

But it is true. If you have more money, you can hire a more senior lawyer in our court system that has more experience, that is better able to litigate your claim. It’s just a reality of our court system which I take on, as Attorney General, as one of my mandates — to try to reduce that disparity between people who have resources and people who don’t.

If you have money, you don’t have to borrow money from your personal injury lawyer while you wait for a settlement at, in many cases, 10 percent interest. That is a big problem with the current system. It’s why we’re changing the system; why we’re going to a system where people don’t have to wait years for their settlement; and where, if they’re going to get the care that they need, they’re not going to have their insurance company hiring a lawyer for the at-fault driver to fight them in court.

The insurance company will have one duty — again, Bill 11; look forward to it — which is the duty to assist people in understanding all the benefits they’re entitled to. It’s not the duty to the at-fault driver to defend them against the reasonable claim that they were at fault in the accident.

If the member wants me to agree that the current system is a good one and that changes to it are therefore making it worse, no. I think this change is meant to make a significant improvement to an issue that’s been identified over a long period of time. But it is a change to a system that is not working for British Columbians. It is in the context of a large-scale reform we’re doing that’s going to save people money and improve their benefits.

There will be a difficult transition, I acknowledge, for many people who work in this sector. We continue those discussions with people in that sector to try to mitigate some of that impact.

[2:35 p.m.]

But the fact is that the change is coming and that our attempts here to mitigate some of the excesses of the system as we wait for the transition period to the new system is just that. We’re trying to mitigate some of the excesses, which is an important thing to do for British Columbians because they have to pay for all of these extra reports through their car insurance.

M. Lee: Certainly, we know that ICBC has been challenged in different ways and that, whether it’s under the previous government or this current government, there have been many efforts to try and improve that. What we’re talking about, though, is how detrimental this bill is to British Columbians. Let me use this as an example here, just to use some numbers by way of illustration.

In terms of the disproportionate impact that the percentage cap would have on an income earner, if there’s a person who makes, let’s say, $200,000 per year and loses a year of income as a result of a motor vehicle accident, that person would, under this Bill 9, be able to recover at least $10,000 of disbursements, 5 percent of that $200,000 loss. If a person who is making $20,000 per year loses a year of income as a result of a motor vehicle accident, that person can only be assured they would be recovering $1,000 of disbursements.

This is a situation where — beyond the actual resources of an individual, a person who is of higher income versus a person of lower income; we’re not talking about that — we’re talking about the fact that the percentage of recovery actually has a disproportionate effect on an individual who makes a higher income versus a person who makes a lower income, based on the amount that that person would be able to recover.

That means a lower-income person would only be able to recover…. I recognize that’s a low income. That’s a pretty low income, at $20,000. But whatever number you pick, say $40,000, the percentage of recovery, even at a $2,000 level, is quite low. As a result, that makes that individual more susceptible to the kind of low settlement offers that ICBC has been utilizing, at least since February of 2019. This is what’s forcing many of these claimants into having to go to court, further.

When faced, under this bill, with a choice of accepting a lowball settlement from ICBC versus the recognition that they can’t even recover a small percentage of their disbursements, this has a severe effect on that individual’s ability to get justice, to access justice. This is the concern. Again, does the Attorney General not see the concern I have, relating to that disproportionate effect, in view of the example I just gave?

Hon. D. Eby: A couple of things. First of all, in terms of claims worth less than $100,000, which the member’s example is an example of, only 28 percent of those claims would be affected by a 5 percent disbursement level; whereas for claims worth $100,000 to $200,000, it’s 70 percent of those claims; and for $200,000 to $2 million, it’s 65 percent of those claims.

[2:40 p.m.]

The lower-value claims are less affected, so the member’s suggestion of disproportionate impact is not borne out by the statistical reality of where the expert report expenses are being incurred. I think that if there were a world where you could have unlimited expert reports, pay those experts whatever they charged, present those to a court and get that full recovery back from ICBC and it wouldn’t affect car insurance rates, that would be a great situation. But there are finite resources.

What the member is proposing, maybe — he’s just asking a question; it’s not fair to say he’s proposing it, but devil’s advocate here — is that there be no limit on expert reports, that there be no limit on recoverable disbursements and that people who drive cars in British Columbia should pay to subsidize that system. Who does he think will be most affected by increased car insurance rates under that system, with out-of-control expert reports? It’s going to be poor British Columbians, people working low-wage jobs.

That is exactly why, to benefit low-income British Columbians, people who are hurt by higher car insurance rates, we have the reform coming in, in May of this year to fix the system and save them 20 percent on their car insurance. So to suggest that an initiative to help control an area of costs that is a source of wide agreement across our justice system and common-law systems across the world as a problem area and to say that this is what’s going to hurt poor people is bizarre, because it’s not borne out by the evidence.

Secondly, it proposes to subsidize this out-of-control system by charging more for car insurance to the same poor people the member says he’s trying to protect. It’s a tough pitch, I would say, to low-income British Columbians that they need to pay 20 percent more for their car insurance to maintain this current system — which, I don’t know, I think we all agree isn’t working very well.

I’ll leave that to that member, that he’s actually defending their interests by charging them 20 percent more or asking them to subsidize these experts that charge $10,000 a report or $50,000 worth of expert reports on a $100,000 claim — that that’s somehow to the benefit of low-income British Columbians.

M. Lee: Well, to be clear, I’m not the person developing, on the fly, all sorts of initiatives and programs to reform ICBC. That is the Attorney General. That’s what has been happening. On any given day, there’s a new product reform here, there’s a new product reform there, and it’s just a hope. That’s what we have discovered here today. It’s just a hope. It’s a hope and a prayer.

My concern is about the rights of injured British Columbians. When we look at this 5 percent disbursement limitation, no other jurisdiction in this country has that disbursement limitation. Where did this come from?

Let me ask the Attorney General what the origin was of this disbursement limitation. Where did this proposal originate?

Hon. D. Eby: Let me get this straight. The member hands over…. To the member’s credit, he wasn’t there in the previous government.

[2:45 p.m.]

They hand over to our government a corporation losing $1 billion a year. Then the member stands up and says: “Oh gosh, you really seem to be rushing these reforms.”

Yeah. Yeah, we’re rushing the reforms, Member. Yep, $1 billion is a pretty significant bleed.

I’m happy to say that pre-COVID, we were on track to a break-even year for the first time in a long time at ICBC, with the actual actuarially indicated rate — that is, the rate increase required to ensure ICBC will break even — of zero percent. Pretty good. Pretty good start. We’re not done, because rates are still too high. So May — a new system, 20 percent savings for British Columbians. Stabilize the patient; make the patient better. That’s where we are.

Where do the ideas come from, the member wants to know. Good question. For the 5 percent proposal…. Again, that’s not a final number. Those discussions are ongoing. I’m glad to hear suggestions from the member about an appropriate value, from his perspective. It was a breaking point in terms of where the disbursements paid out by ICBC to claim files seemed to be appropriate, in terms of the number of files above and below that threshold, and similarly for the $3,000 expert limit. Glad to hear feedback about both of those numbers and where the member or other stakeholders feel they should be.

That there should be a limit, that there needs to be a limit on the cost of expert reports and recoverable disbursements…. I’m not sure if, from the member’s perspective, that’s a debatable point. There should be limits. The reason there should be limits is that there are not infinite resources to pay for these recoverable disbursements.

If there is one side that can generate as many expenses as they want in litigation and have them all paid back and there’s no governor and no control on that and ICBC has to pay those costs, or the controls and governors that are there are, for one reason or another, not capable of controlling that, then there has to be a limit put in place. Because if you can incur expenses to the point of 50 percent or more of the value of a claim, then everybody’s got to pay for that through their car insurance. And that’s not fair. So there should be these limits. Glad to hear suggestions from the member about where they should be coming from.

Some of these reforms came from civil justice task force reforms. Other proposals came from lawyers who practise in the area. Other proposals came from other jurisdictions — the United Kingdom, Australia. I can’t advise the member exactly where this particular piece, the percentage of recoverable disbursements, originated. We’ll do some work and see if we can track down the original source of that. We just don’t have it at the moment for him.

Whether it came from a public servant, whether it came from another jurisdiction, whether it came from a civil justice task force report, whether it came from wherever, if we don’t agree that there needs to be a limit on these expenses being incurred, then what does it matter where it came from? We just don’t agree on the bill. I understand that, if that’s the member’s perspective.

M. Lee: Well, I think that we’ve often been able to have good discussion about bills of this nature without going back into history. The Attorney General just did that. Of course, we know what the previous government, when it turned over the keys with a $2.7 billion surplus to this government, looked like.

Interjection.

M. Lee: Members on the other side may laugh about that. But when we talk about $5 billion towards COVID recovery, who can fund that? It’s because the previous government was able to manage the fiscal affairs of this province so that it could meet this rainy day, this horrible rainy day.

[2:50 p.m.]

The scale of the losses at ICBC continued to escalate when this government took over. We’ve talked at length — not here in this particular bill debate, and we will have another round in estimates on ICBC — about the fiscal position of that Crown corp. But when I talk about product reform, one of the product reforms that the Attorney General had indicated before was, of course, the minor injury cap reform, which the Attorney General had estimated would result in $1 billion of savings.

Has that actually occurred? Well, if that has occurred and if there are cost savings from this Bill 9 — although we’re not sure; it’s still a hope — why is it that we learn that the Attorney General has been developing on the side while doing all of these other product reforms no-fault, which is what’s coming forward in Bill 11?

If he had such confidence in his product reforms in the past, the $1 billion of savings by limiting minor injury, by including brain injury and concussion, after he said he wouldn’t do that, by way of regulation, as we will see in Bill 11, with all of the series of regulations to be determined in terms of the nature of that bill, we still have here in this House this Bill 9, which we still don’t have definition on.

The Attorney General has repeated to say that we don’t know what the level of disbursement will be. Is it going to be 5 percent or lower? We don’t actually know the number of the amount that would’ve been limited for each expert report. We all understand, in terms of costs to British Columbians, there is only one taxpayer here. But at what cost?

When we’re talking about someone who has been injured catastrophically — a quadriplegic, someone who has a severe brain injury — why is it that this Attorney General can stand here and limit their ability to recover? That’s what we’re talking about. You know, there are other forums, certainly, where we could talk about ICBC further, and we certainly will.

If I could ask about joint experts here. At the committee stage on March 5, we talked about the use of joint experts. One of the reasons for this bill is to encourage, in the view of the Attorney General, the use of joint experts. So I’d like to come back to that, in the sense that…. How will it work when a party cannot know the value of a claim without an expert opinion, yet that party is expected — and expects the court — to factor in the value of the claim when the court is assessing whether or not to allow additional experts?

[2:55 p.m.]

Hon. D. Eby: So a number of questions the member asked there. I’ll try to take them in order.

Where is the $1 billion in savings? The savings at ICBC are consistent with projections around the initial round of reforms. The member will remember that ICBC was losing $1 billion plus a year and that pre-COVID was projecting, finally, a break-even year based on the minor injury reforms and an actuarially indicated rate of zero percent for the increase to car insurance for the following year. So that’s where the savings are.

They materialized. So, good news, but not enough. I’m not sure if the member gets the kinds of letters that I do about the cost of car insurance in British Columbia. I get a lot of letters from British Columbians saying that car insurance is too expensive. People who write and say that are right. We need to do better. So phase 2. Stabilize the patient, phase 1. Phase 2, get the patient back up on the patient’s feet. That means 20 percent savings for British Columbians and better benefits through the reforms that we’ll talk about in Bill 11.

The member wondered, because the $3,000 and 5 percent limits are yet to be finalized, whether there were some idea that they might be lower, that there might be less than $3,000 for an expert report or less than 5 percent of the claim recoverable in disbursements. That is not what’s under consideration. All that’s under consideration is the potential for increasing those numbers.

The member speculated that those most affected would be those catastrophically injured. In fact, for claims worth more than $1 million, 75 percent of those conclude within the 5 percent disbursement limit. So they’re actually a category of significantly lesser affected claims.

Then finally, the member wondered about how a court could possibly apply the test if they didn’t know the value of the claim — the test in sub 12.1(6), if they didn’t know the value of the claim, because the party hasn’t been able to retain an expert.

[3:00 p.m.]

I’ve read it a couple times now just to make sure. Subsection 12.1(6)(b) says: “without additional expert evidence, the party making the application would suffer prejudice disproportionate to the benefit of not increasing the complexity and cost of the proceeding.” So I’m not sure where in that test it talks about the value of the claim.

When I read it, it doesn’t. It talks about prejudice to the party. It talks about the complexity and cost of the proceeding. But it does not talk about the value of the claim. It’s not part of the test.

M. Lee: I know that we canvassed some of this, as well, in terms of this, previously at committee. So some of this may go back through that. But just for the benefit of furthering the response to the question, how is a court expected, then, to assess both the prejudice and the benefit?

Hon. D. Eby: This is an example of the kind of test that judges are regularly asked to apply under the rules of court and in other areas: whether a matter is suitable for a summary hearing, whether it’s appropriate for a jury. Asking courts to evaluate prejudice versus the complexity and cost of the proceeding is something that our judges are certainly capable of doing and do on a regular basis.

M. Lee: I just wanted to continue to come to this in terms of what the expectation would be between ICBC and a plaintiff. Of course, we know that it is the burden of responsibility…. The onus is on the plaintiff to prove their case. So the defendant, in terms of ICBC, has no specific burden on them to disprove the case.

Therefore, ICBC does not have the same obligation to obtain reports. When we talk about the kind of discussion we were having around the limitation on expert reports, this merely is going to favour the defendant in the sense that the limitation on expert reports makes it more difficult for the plaintiff to bring about its case for full recovery. Again, does the Attorney General not see this unlevel playing field that’s being created by this limitation?

[3:05 p.m.]

Hon. D. Eby: It’s correct to say that, in our justice system, the plaintiff is required to prove their case. This doesn’t change that. The rule applies to both sides.

It’s important to note that if ICBC, as defendant, unreasonably withheld consent to additional witnesses, they would be subject to costs of the application that the plaintiff would have to make to add additional expert witnesses. So there is a consequence for conduct by the defendant that would prevent the plaintiff from presenting their case appropriately, because the court will allow the witness, and the costs of the application will be awarded against ICBC.

M. Lee: Well, I think it still gets to the concern around the position of ICBC and the benefit that is actually going to accrue to ICBC in terms of putting more handcuffs around plaintiffs in terms of their ability to bring forward expert reports.

I know that we had also discussed, in terms of the disbursement cap…. The Attorney General had previously indicated, in response to a question I had raised, that there would be special costs available. If ICBC, say, drives up the costs of litigation, special costs would be available for the court to sanction that conduct and to increase the amounts recoverable to the party that’s been aggrieved by ICBC’s bad conduct.

I’d ask the Attorney General, given that he has referred to that possibility over the last number of years, is he aware of any instances where the court has indeed awarded special costs involving an ICBC personal injury matter?

Hon. D. Eby: It has happened. It’s certainly rare. I will note that special costs are not included in the disbursement limits. You know, I think one of the reasons why it’s rare, despite the member’s assertions here in this place…. ICBC does settle most injury claims out of court. I just want to give him a few statistics about what happens when things do go to court.

Of the 166 trial decisions received by February 2020 for trials held in the year 2019, the judgments were for amounts less than the last offer made by plaintiff counsel 55 percent of the time — that is, the judge awarded less than the last settlement offer made by a plaintiff counsel 55 percent of the time, so more than half of the time. When you do the math, if ICBC had, instead of going to trial, agreed to the last offer made by a plaintiff counsel in each of those cases, the result would have been an additional cost of $26.5 million.

When you’re successful in 55 percent of the cases that go to court at getting an award that’s less than the last offer made by a plaintiff counsel, I don’t think it’s fair to say that ICBC is providing unreasonable settlements, forcing cases to court when they’re not merited. The numbers in that case would be that ICBC is regularly losing trials. That’s not the case. They’re winning more than half. They saved ratepayers $26.5 million by taking those 166 matters to court.

[3:10 p.m.]

There’s really no merit to the suggestion that ICBC’s settlement approach is inappropriate or that it’s increasing costs. Just the opposite.

I hope that provides the member with some context.

M. Lee: I believe that the Attorney General is commenting and responding to a point that I made much earlier in this committee process. I’m happy to further engage with the Attorney General on that topic. But let me just first say that in terms of special costs, the member had indicated before that if there was a concern regarding items that would be excluded from the 5 percent, there would be the ability of the court to award special costs. But I understand from the Attorney General’s response that it very rarely happens.

In fact, when I look at the review of case decisions, there’s actually been only one in the last four years that awarded special costs in an ICBC claim decision. It’s a very high bar where the judge, in effect, in that case, found that ICBC disregarded disclosure rules, where they failed to disclose evidence in respect of a jury trial and they explicitly disobeyed the court order from the Supreme Court of British Columbia. It’s basically egregious conduct. That’s a very high bar. So between special costs and this 5 percent disbursement limit, there is a big gap.

In terms of settlement offers, I just make a couple of points in response. I do not have the same level of data that the Attorney General has, of course. But in response to my concern, he is citing data, clearly, that is coming from ICBC. Of course, that would stand to reason. He’s also the minister responsible for ICBC. He has access to all the data. And we’re talking about data coming from the defendant’s side. How else would they know the amounts that plaintiff’s counsel offered to settle at versus the amount that was ultimately adjudicated by the courts?

There is a flip side to that conversation, which is this concern about low settlement offers with a change in ICBC litigation strategy, which was evident, as I understand, through the courts in early 2019. And of course, that litigation strategy has led to further delays in the courts — new trial dates having to be found when settlements were withdrawn and replaced with lower amounts. Systematically, this was being done.

We will still see many of those decisions and those claims to be resolved, as they’re currently still backlogged in the courts, pre-COVID, during COVID and now after COVID — at least in terms of the restart, when I say after. But I do think that the Attorney General’s response on settlements merely underlines my concern, again, that repeatedly, through the course of this committee stage debate on this bill, the focus has been on, first, a hope versus an expectation of cost savings for ICBC; secondly, on ICBC’s insurance rates; and thirdly, on ICBC’s financial status.

[3:15 p.m.]

Where do I hear the discussion about the rights of British Columbians? This is the Evidence Amendment Act, not the ICBC recovery act. Every single product reform that this Attorney General has brought forward has stepped on the rights of injured British Columbians in so many different ways. That has been the concern.

The discussion that I was raising with the Attorney General was to understand the purpose of this bill. Clearly, again, in that May of 2019 report from ICBC — the most recent report, as I understand — there is an expectation of cost savings from this implementation of this bill. So I think that the response of the Attorney General really just continues to demonstrate the focus of what truly is at stake here in this bill and the concern, again, that I have around the limitations on the rights of British Columbians that this bill represents.

I turn to further aspects of the bill relating to other expert limits in Canadian jurisdictions. We had had a discussion relating to the fact that, in response, the Attorney General had said that other provinces have limits on expert reports. I acknowledge that. I acknowledge the importance of sound administration of justice in our province to be dealt with in a fair and efficient manner. I certainly would support that. But when we’re talking about a bill that, again, overreaches in this situation, that dips into and suppresses the ability of injured British Columbians to access courts, to access the pursuit of full compensation, that’s where my concern lies.

When we look at the Ontario equivalent, we understand that the Evidence Act limits reports to three, unless the court permits additional reports as being appropriate, and that, in looking at this Evidence Act, it is up to the ability of the court to determine whether more expert reports should be obtained. Under that legislation in Ontario, is there a similar level of restriction on the court’s discretion?

[3:20 p.m.]

Hon. D. Eby: The member’s right. There are some differences between the bill that’s in front of the House and the existing limits in Ontario for some specific reasons. One is that in Ontario, the limit is for all civil litigation. This is exclusively for Motor Vehicle Act litigation in the province. As a subset of litigation, the test speaks to factors that we would hope the court would consider in deciding whether to allow additional experts or not.

More importantly, in November 2007, the former associate chief justice in Ontario, the Hon. Coulter Osborne, issued a civil justice reform project report for that province that pointed out that the limit in Ontario was not working. So rather than implement a limit here that replicates the experience in Ontario and potentially the outcome, the hope was to take Ontario’s experience, learn from it and provide a more specific test for the court to consider in allowing additional expert reports.

M. Lee: Thank you to the Attorney General for that response.

I’ll come back to another point that was raised in that response separately. But just to complete the picture and the review, if we look at other jurisdictions in Canada, other Canadian provinces like Manitoba, New Brunswick, Saskatchewan, Alberta and Quebec, there are, in those provinces at least, also limits on the number of expert reports. Are there any of these jurisdictions that impose the level of restriction on the court’s discretion that is imposed in this bill?

Hon. D. Eby: The member chooses Manitoba and Saskatchewan, which is interesting because, of course, they have public insurers. They’ve also transitioned to no-fault. My preferred name for the system that we’re transitioning to is enhanced care, because fault still matters under that system that we’re proposing. But they do not have this issue, because they do not have motor vehicle claims going to the court system at all in those provinces.

For other provinces, certainly, they may have taken different approaches. I’m not aware of a test that is similar to what we’re putting forward here. But this is, without question, a made-in-B.C. solution to a problem that we have in British Columbia.

[3:25 p.m.]

The hope is that, with this test, we can ask the court to direct the court’s attention to the specific considerations of why this limit should be in place. The bill reflects not just my opinion. Many far more thoughtful people who really delve into issues of civil litigation in the common-law world have looked at the issue of experts and adversarial experts. It is their opinion, which I adopt, that additional experts often have the effect of increasing the complexity and cost of a proceeding without bringing sufficient benefit for the complexity and cost that they bring.

By putting this specifically into the test…. Is this evidence already in front of the court from another expert? Do you really need a second expert to say the same thing to buttress the first expert? It seems like a reasonable thing to ask the court to turn their minds to. And then, can you make sure, before you allow another expert into the courtroom, that you’re not increasing costs and complexity without bringing a proportionate benefit to the proceeding — also a reasonable thing, I think, to ask the court to consider.

The member talks about a dramatic…. I don’t want to misstate. He talks about a significant restriction on the discretion of the court. I don’t think so. This is at the judge’s discretion to determine whether the cost and complexity that is brought by an additional expert is worth it, whether the evidence is already addressed by another expert and there’s no need for a second expert on the same point. It is not a significant restriction on the discretion. But it does ask the court, it asks the judge, to turn the judge’s mind to the very specific issue of why this proposed limit is there and to consider that before allowing additional expert reports.

M. Lee: I appreciate the effort of the Attorney General to walk back through various points that we’ve been discussing in response. The point that I’m first making here, though, in talking about other jurisdictions, is that even when you look at Manitoba and Saskatchewan under their Evidence Act, they have this restriction, whether it’s needed or not. That’s in the act.

What I am demonstrating through this questioning is that none of those jurisdictions has this same test, the same threshold around the exercise of the court’s jurisdiction, which means that this made-in-British-Columbia solution, just like the imposition of a cap on disbursements recovery, is specific to B.C.

Here in British Columbia…. Motor vehicle accidents happen all over this country, regrettably, for different reasons. It’s not specific to British Columbia, yet British Columbia brings forward a made-in-B.C. solution, one that restricts the exercise of discretion by the courts and imposes this disbursement cap. That’s why I think that it’s important for us to raise these questions about this bill.

Coming back to a topic which the Attorney General indicated in terms of the Ontario legislation covering all civil litigation and not just motor vehicles…. Again, we’ve talked throughout this committee process about the importance of the role of the Attorney General, the proper and fair and sound administration of justice in our province.

Why is it that with the consideration of esteemed experts in the legal field, as cited by the Attorney General over the last 15 years, the reform to the Evidence Act is only specific to motor vehicles, motor vehicle claims and disputes? What is it exactly about motor vehicle accidents that’s different from other civil litigation claims in this province? If the benefit of this legislation is so great, as the Attorney General indicates, why is it that this bill only focuses on motor vehicle disputes? Ontario doesn’t. B.C. does.

[3:30 p.m.]

What’s the difference? Well, as I’ve indicated through­out, we don’t have in Ontario, I don’t believe, when that was brought in, an Evidence Act change by an Attorney General who is also the minister responsible for motor vehicle insurance. That’s the difference here.

[S. Gibson in the chair.]

When we look at the concerns around the dual roles that this Attorney General carries, it’s clearly evident in this bill and clearly evident in terms of how this is presented to this House. When we look at other common law jurisdictions, which were referred to previously in committee, there are other limitations, similar in some respects, in Australia and the United Kingdom. But for example, in England and Wales, there is no hard limit. The limitations that are being placed here in British Columbia are far more stringent than in other jurisdictions.

When we look at the regulation-making power under section 12.1(9) of this act, they permit, as we have talked about, regulations that would come forward to limit the amount of money an injured person can recover per expert report, limiting the amount that can be recovered as a percentage of the total amount of a settlement or court judgment and limiting the number of experts or the number of reports that can be used in court. We’ve heard discussion and references to those limits that will be set by regulation.

Can the Attorney General confirm the further process which his ministry will utilize to determine those limits?

Hon. D. Eby: The member asks in several different ways: why does this only apply to motor vehicle litigation? Isn’t this evidence of profound conflict of interest that I’m in as Attorney General and minister responsible for ICBC? No, it’s not. You’ve got to flip to section 2 in the bill, where it expands it to all personal injury actions.

I do think that if you pulled someone in off the street and I had to explain to them why we were starting with personal injury associated with motor vehicle collisions, I think they’d get that. I think they would have read in the Province newspaper about someone receiving a court award that was eaten up entirely by disbursements from their lawyer’s office. I think they would have heard about ICBC medical experts who don’t see patients, who have an office over an airport hangar, in the Globe and Mail. I think they would shake their heads at the excesses of the system, and they would say: “Great. I’m glad you’re starting with motor vehicle collisions.”

Only the critic could stand in this place and say: “Why are you starting with motor vehicle…?” Seriously, why are we starting with motor vehicle claims? What? Where has this member been? How many headlines does he need about the problems with the car accident litigation tort system in our province for him to understand why we would start with motor vehicle claims?

[3:35 p.m.]

Putting aside the fact that his core assertion — that this is only about motor vehicle claims — is patently incorrect…. Section 2 expands it to all personal injury, brought into force by regulation. Putting that aside, I don’t understand how you could be living in this province, understanding how people feel about ICBC and our current car insurance system, the court system and how it’s interacting in this way; part 7 benefits that leave people who are in single-car collisions with a moose, living in poverty because there’s no one to sue…. How can you look at all these things and say: “Wow. It must be a conflict of interest — why the member is starting with motor vehicle claims in courts with this reform.”

We’ll go out in front of the Legislature. We’ll pull in some member of the public, and we’ll say: “You know, we can start anywhere in terms of this reform around expert reports. I think we should start with this area that’s been on the front page of the Globe and Mail, from page of the Vancouver Province around excesses with experts, or do you think we should start in some other area?”

I think the member would have his answer about why we’re starting there. It’s not conflict of interest. It is just the excesses and the problems with the current system that must be addressed — period.

M. Lee: Well, I believe we can continue to engage on that topic, and perhaps we will. But first, let me just ask if the Attorney General could please answer my question.

Hon. D. Eby: Yeah, the member got me so excited with his first set of questions in his question that I missed the last question, which is: how will this number, ultimately, be set? It’ll be based on the information that we’re able to gather about the actual value of disbursements paid out in claims, as well as engagements with stakeholders.

M. Lee: When the Attorney General talks about engagement with stakeholders, what will that process look like?

Hon. D. Eby: Typically, it involves asking stakeholders to provide feedback on the proposal and then receiving that feedback and incorporating it into the policy analysis. It can take any number of forms, but I imagine that the engagements on this will be quite discrete and limited to legal organizations like Trial Lawyers, Canadian Bar Association, Law Society, as well as, of course, the Chief Justice of the Supreme Court, the Chief Judge of the Provincial Court and the Chief Justice of the Court of Appeal.

M. Lee: Prior to the introduction of this bill, what stakeholder consultations have been held, including with those groups that the Attorney General has referred to?

Hon. D. Eby: I’ve had a number of conversations with Law Society, Canadian Bar Association and Trial Lawyers. We meet our obligations with respect to engagement, where appropriate, with the chief justices and the chief judge.

I can advise the member that the preliminary conversations that I had with these stakeholders is what has led us to revisit those numbers. In addition, we have also had an engagement with an organization that represents a significant number of medical experts, and that has provided some feedback to us as well. They also contributed to our decision to revisit these numbers.

M. Lee: I think it’s important to understand the nature of stakeholder consultation, particularly as it’s conducted in this context. That is reform provided by the Attorney General and putting in place legislative frameworks that will then set, by way of regulation, the specifics of that legislation. The Attorney General has just outlined what that stakeholder process will look like.

[3:40 p.m.]

Certainly those who are stakeholders…. Those who are in the brain injury and concussion groups — organizations, not-for-profits around this province which are supportive of those who have suffered serious concussions and brain injuries — had understood, prior to the minor injury bill, through statements made by the Attorney General that there wouldn’t be an inclusion of brain injury and concussion in the minor injury definition.

When the Attorney General talks about stakeholder consultation, what assurances do we have here in this House, given the indications that he’s provided on this bill, that the amount that’s been identified for the limit on disbursements, or the amount for each expert report, won’t be lower than 5 percent and $3,000?

Hon. D. Eby: Well, actually, it was engagement with stakeholders that led us to include concussion in the minor injury definition and to do it in the way that we did, which was a unique treatment compared with other minor injury tests and psychological injuries that were similar. But if your concussion resolves within 16 weeks, allowing you to return to the activities of daily living, then it’s considered a minor injury.

I don’t know. It’s possible, I guess, that stakeholders who were talking about brain injury around the table expected that we would treat concussion that resolved within 16 weeks as a major injury. I don’t at all for one second pretend that it’s not a huge impact on someone’s life to have a concussion that limits their daily activities for 16 weeks. That obviously would be huge for a parent, for someone who is working. However, for the court process associated with that, for the pain and suffering award associated with that, the limit was set at 16 weeks as a minor injury.

The terminology…. If I could do it again, I would change it, because I don’t think the experience of a 16-week concussion is minor for the person who suffers it. I don’t know what term I would use preferably, but I think it is an unfair diminishment of the experience of the person who suffers it. But what is meant by minor injury is that the injury is relatively more minor to other types of injury, and, therefore, the process and awards associated with it should be relatively more proportionate — in other words, should be faster and cheaper to resolve. That was the principle in the minor injury changes that were brought forward under the previous bill.

The member feels that that was a great betrayal of stakeholders somehow. It’s possible, I guess. I do accept that the terminology that was used was not sufficiently respectful of the impact that a head injury like that can have on a person’s life. I definitely believe that the lesson that I took from that is one that will inform other work we do. I don’t believe that it was a betrayal of the people that I said we would not be including brain injuries as minor injuries, but there you go. So we might have to agree to disagree on that one.

Regardless, I can tell the member that 5 percent and $3,000 is the floor of what we are currently considering. If there are any changes, it would be to increase the value of the recoverable expert report beyond $3,000 or the percentage of the claim beyond 5 percent.

[3:45 p.m.]

We will be engaging with stakeholders. Because we engage with stakeholders does not mean whatever number they put forward is the one that is adopted, ultimately, by government. I will not provide any assurance like that. What I can assure stakeholders that we engage with is that their submissions will be taken very seriously, because our goal here is a fair process that respects that people do need to present expert witnesses, that they will need to recover disbursements to do that to prove their case.

However, we need to restrain the excesses, so that will be the goal of the engagement. It will not be a large-scale, online engagement-type process but a targeted engagement to people who work in this area.

M. Lee: I think the concern around the amount of details that need to be dealt with by way of regulation — as we will see in the Bill 11 debate to come and as we’ve seen in the minor injury bill and currently in this Bill 9 — all goes back to the same consideration as to how that level of stakeholder consultation is done and what representations and understandings are made.

I did not use the word “betrayal.” But it’s not just my viewpoint. When I talk to other stakeholders who were involved in those consultations, they had a different understanding and assurance from the Attorney General that it would not be inclusive of brain injury and concussion. Now there is certainly detail in that, in terms of the 16-week period.

In terms of a class of injury, as the Attorney General has admitted here and as he admitted back in the days when we were debating the minor injury bill, if he had to do it all over again, he wouldn’t call it “minor,” because it isn’t. It captures a great percentage, 80 percent or so, of minor injury claims in this province. So it does matter, in terms of the definition and what is put in place, after a bill has passed, by way of regulation. It does matter. The details do matter. This is my concern regarding the stakeholder consultation aspects.

I wanted to come to some remaining points on this section 1 around the retroactive nature of the application of this bill. As we see in section 12.1 — in response to some previous questions I had raised at committee level, concerns around how those accident victims who are currently in a litigation proceeding or claim proceeding with ICBC — this is a significant change.

When the three-expert rule was ruled unconstitutional, the Attorney General had indicated in our earlier committee process in early March that “well, it shouldn’t have been a huge surprise, because I telegraphed this in several ways that this was our intention to do so,” and that based on that expectation, that telegraph, claimants ought to have been informed about their legal rights with this cut-off date of February 6, 2020.

Let me ask and give the Attorney General an opportunity, again, to explain how and whether he believes that telegraphing, which is the term he utilized, is fair enough to those British Columbians who have been injured in motor vehicle accidents.

[3:50 p.m.]

Hon. D. Eby: The goal was to make sure that this rule actually had some effect. If the member is on to section 3 of the bill, which amends section 12.2…. In it, there are a couple of deadlines by which you can be exempted from these rules. One is that you can have the expert report, have it be served before February 6, 2020. Now, February 6, 2020, is the date that this was announced, so if you hired an expert, got the report and served it before the day this was announced, there’s no issue.

The second way you could exempt yourself is if you’ve got a notice of trial filed and served before February 6, 2020. You’ve got your court date. You’ve filed and served your notice of trial before February 6, 2020. No problem. That was the date of the announcement, so you’ve already got your trial date. You’re planning.

For those folks who didn’t even have a trial date, they hadn’t served the expert report, they are now subject to this new rule. It’s not speculative — that there would be a rush on the registry, for example. If the notice of trial was some later date, there would be a big lineup of people trying to file and serve notice of trial. We saw it with the minor injury legislation. There was a rush on the registry.

The goal was to be fair to the people who had trials coming up: they had their trial date set; they were preparing for trial before the rule was announced — and for those people who had actually retained an expert and served the expert report before the date of the announcement. Following the date of the announcement, because you have notice of it, you are subject to those new rules and the proportionality test that the court will do, in terms of allowing additional expert reports.

M. Lee: Recognizing that the so-called telegraphing occurred after the ruling by the courts that rule 11-8 was unconstitutional, was there any telegraphing at that time about a disbursement cap?

[3:55 p.m.]

Hon. D. Eby: Yes, I can advise the member that the February 6 announcement also included the proposed disbursement limits of 5 percent and $3,000.

Also, it may be of interest to the member that there are a significant number of people who would have had trials go ahead during the COVID period. They had notices of trial issued for that period. If you have had any…. The legislation, as proposed here, is if you have had any notice of trial filed and served before February 6, then you are excluded from these rules. It doesn’t matter whether your trial went ahead or not because of COVID or otherwise. As long as there’s been a filed and served notice of claim before February 6.

M. Lee: Just to look at the other date that is there in terms of trial dates that are set for after October 1, 2020. So there would be injured British Columbians who have been in dispute with ICBC for several years. British Columbians that are working through that process, with severe spinal cord or brain injuries, who have been presumably working within the rules of court that govern their claim and moving forward. But if their trial date is set for after October 1, 2020, there is a significant impact on these proposed changes, on those injured British Columbians.

What assessment has the Attorney General Ministry done on the number of claimants that would be affected by this rule change? First, in respect of motor vehicle claims, in which ICBC is the defendant. Secondly, in terms of personal injury claims.

Hon. D. Eby: That October date is nine months before trial. The goal was to try to capture those folks who were preparing for a trial date that was reasonably imminent within the next nine months — with their expert reports — to exclude them from this rule process.

[4:00 p.m.]

We don’t have the numbers of matters that would be captured here. It’s important to note that those matters that were adjourned because of COVID are not affected by this. If they qualified before and they were adjourned, they still qualify now.

M. Lee: If we have a British Columbian with a brain injury who has had an assessment scheduled with an expert in March or April of this year, despite following the rules in again moving their claim through the process, they’re now subject to a whole new set of rules, as we’ve been talking about here. How is that fair to that individual?

Hon. D. Eby: If a party necessarily and properly incurred the expense before the date of the announcement, February 6, 2020, for reports from experts, the regulation may not limit the disbursements payable to that party. I’ll refer the member to sub 12.2(3)(a) for that. If it was incurred after it was announced, the member is right. After the announcement, those expenses would be subject to the new rules. But then it had been announced, so it is fair.

M. Lee: I think I just heard the Attorney General say that if it had been announced, it’s fair. But we’re talking about individuals who’ve been in the process of their claim, individuals who may have been fairly injured some years ago, because we know that many of these claims take a number of years to get through the process. How is that fair to an individual, who has been already going down that road to seek recovery, for this rule change to occur?

Hon. D. Eby: Again, for the expenses incurred before the announcement, a regulation under sub 12.1(9) must not limit the disbursements payable. For expenses incurred after the announcement, they’re subject to the new rules and, of course, also the tests that we’ve spent some time going over — where the court may allow additional expert reports, subject to the proportionality test that we set out there. I’m not sure I have anything else to add to that.

Section 1 as amended approved.

On section 2.

[4:05 p.m.]

M. Lee: In terms of section 2, as the Attorney General pointed out in a fairly passionate response to a distinction I was drawing, let me just first ask: from a drafting point of view, how was this section drafted in this manner?

Hon. D. Eby: The drafting approach here is that the section essentially acts as if 12.1 is already law and amends it to expand application beyond motor vehicle accidents alone to all personal injury proceedings. The effect of it is that when a regulation is made to bring this section into force, it will expand the application of the rules and the test that we’ve been talking about beyond simple motor vehicle accidents to all personal injury claims. That is the effect of this section.

The timing of implementation of this will depend very much on how 12.1, unamended, performs to address some of the concerns that I’ve articulated about how expert reports are used in court currently and where there’s an opportunity for improving efficiency of court proceedings. If it seems to be going well and addressing the issue, then we would broaden it. And if it doesn’t seem to be addressing the issue, then we would need to be revisiting it, not broadening it.

M. Lee: Thank you to the Attorney General for confirming what is a staged approach — first with the changes to be brought in place under section 1 of this bill and then, subsequently at a later date, a broadening to include all personal injury. At this time, what assessment on impact, if any, has been made on the broadening of this restriction on expert reports to personal injuries?

Hon. D. Eby: The assessment is going to wait for the implementation of phase 1 to see how it is performing, as I said in the first response. What is the reality on the ground, in terms of what it looks like after implementation? If it is working well and it seems like it’s achieving the goals that I know many people share around how experts are used in our court system, then we would look at expanding it. That would be the analysis: how is it actually performing in the court system? Until it’s actually implemented, we don’t have that information.

Hon. Chair, if I might ask for just a two-minute recess, if my critic is agreeable.

The Chair: We’ll take a recess and allow a break. We’ll be back in a few minutes.

The committee recessed from 4:09 p.m. to 4:13 p.m.

[S. Gibson in the chair.]

M. Lee: I’m resuming the discussion about section 2. As the Attorney General just indicated, there will be a staged approach here in reviewing the implementation of the rule changes under section 12.1, as they pertain to motor vehicle injuries, before extending it and broadening it to personal injuries, more broadly. The point that I was making earlier….

[4:15 p.m.]

Perhaps I can ask one other question before making that point. Is the area of change to the Evidence Amendment Act…? Were there any other areas considered — in terms of personal injury, motor vehicle or any other areas of the law — for claims of this nature, for a rule change under the Evidence Amendment Act?

Hon. D. Eby: The reason for the focus on personal injury was that it seemed that the potential for a similar rule to apply across personal injury proceedings was more amenable to the tort litigation approach, generally — that cases are broadly similar to each other and that considerations are broadly similar — compared, say, to a contract dispute of some kind or to construction litigation.

With that said, there is active consideration around civil justice reforms. Coming out of, in particular…. In front of mind is the COVID backlog. We have a couple of different groups that are active, providing advice to government and weekly engagements, in some cases, and monthly engagements, in others, with the chiefs of the various courts as well as with the various legal organizations — the Canadian Bar Association, the trial lawyers and the Law Society — around potential reforms to help resolve the backlog by improving efficiencies in the court system. That is a very active discussion that’s underway.

I can advise the member that there are active policy reforms being considered but at far too premature a stage to announce.

For obvious reasons, there’s a great deal of urgency around doing what we can to keep matters out of court, if we can, through early resolution, to narrow issues, once matters do get to court, so that court time is only used for those areas of true dispute and to make sure that people are able to access courts in various ways if they have compromised immune systems or are otherwise challenged to attend personally in court. For example, they’re in custody. There’s a lot of work happening on that side.

M. Lee: I certainly acknowledge the significant amount of justice reform policy work that continues to go on, including the advancement of how the justice system can operate more effectively remotely and through the use of technology, even during this COVID-19 time. Certainly, in terms of other areas, I look forward to having discussions about further reform.

[4:20 p.m.]

I would suggest, though, that the conversation we’ve been having here…. The reason why, of course, I had focused on the changes in respect to vehicle injury proceedings is, of course, because of two reasons. One is the way that this bill has been characterized by the Attorney General and the way it has been positioned in the course of other reforms in order to address the challenges with ICBC that the Attorney General is dealing with. This has been referenced as a benefit, as a way to reduce costs.

We went over the ICBC communications around this. This has been the way this bill has been framed. Regardless of the need identified in various media pieces, there are certainly other references to the need for the continued access to our justice system in a fair, accessible way.

The second reason, of course, is the bill itself. As we just reviewed in the conversation around section 1 of the bill, this is what is changing. Government can always continue to expand the scope, as they did with the civil resolution tribunal put in place by the previous government — expanded the jurisdiction of that tribunal in many ways that, perhaps, it wasn’t designed to do in the first place. So there continues to be challenge in that. But in this case, we’re being asked to approve a bill that deals first with motor vehicle accidents.

This is what this bill focus is. So when I made the earlier points, again, about why it is the consideration around the changes to our Evidence Act, and why the focus here…. I get the fact that ICBC is the chief litigant of this province. It is a significant cost driver for drivers of all backgrounds, all income levels — students, those who rely on driving for their income, to get to their jobs, to get to their schooling. We know how important this is, but also how important this is when you get into an accident, when your life and your ability to fully function in the way that you wanted to do has been taken away because of a driver who was careless, negligent. This is the reason why this matters.

Again, my concern for the way this bill has been brought forward and the decision to focus on vehicle injury proceedings first is not so much that there isn’t an understanding, that there’s significant litigation and volume around this, and cost. But it’s a recognition that we have the Attorney General of this province changing the rules midstream on a retroactive basis for claimants that have been at this for many years. This is the concern.

I’ve been going through this bill indicating areas of concern that structurally still exist — not just with this bill. That concern will continue in terms of the confidence that British Columbians would have in the ways that this government is proceeding, changing the way in which British Columbians can bring forward their claims, the rules of court, in the manner which they’re doing here, in a way that is a made-in-B.C. solution that is far more restrictive than any other jurisdiction in Canada.

[4:25 p.m.]

With that, I have and continue to have significant concerns about this bill. I’m not in support of it.

I would encourage all members of this House to consider what’s at stake here and to consider what is occurring here, because this Attorney General is in conflict. Whether we want to debate and continue to debate that conflict…. I would say from a perception point of view, all British Columbians need to have confidence in the due administration of our justice system. It is a real concern when we have an Attorney General who is changing those rules to benefit ICBC, as he’s the minister responsible for that too.

Hon. D. Eby: Thank you to the member for his closing remarks. I mean, I’m not surprised the member is going to vote against this. The member voted against Bill 11 too, on second reading, with his colleagues — the same bill that’s going to provide 20 percent savings to British Columbians on their car insurance and some of the best benefits in Canada. Okay. The member is opposed to these things. Difficult to know what the member stands for.

He says he stands for low-income British Columbians, but I want to encourage him to seriously question whose side he is on when he stands in this place and votes against reforms aimed at curbing what has been widely commented on by legal experts of various stripes — not just in British Columbia; across Canada, the United Kingdom and Australia — as an excess that needs to be dealt with in the civil litigation system.

As he stands up and votes against reform in this area where it’s badly needed, here is a story about a low-income British Columbian under this current system. ICBC paid out $127,362.09 for an accident claim. The amount that the person walked away with was $22,874. What happened to the rest of the money? Expert reports — nine of them in all — from doctors, psychologists and rehab consultants cost more than $28,000. One doctor’s report alone cost more than $11,000; legal fees in the case, $25,000; $9,000 of reprographic charges; $6,000 for transcription. And $13,000 on a 10 percent interest rate charge on before-settlement expenses left this person with $23,000 in cash.

When the member stands up and opposes this bill that attempts to put some level of proportionality on expert reports, one small piece of that itemized bill that cost this person more than $100,000, of their $127,000 settlement…. The member stands up and says: “I encourage all members of this House to vote against this to defend low-income British Columbians from this terrible legislation that’s proposed.” Well, goodness, who is the member defending? He is defending the nine experts who billed $28,000, one of them more than $11,000, for a $128,000 claim.

Low-income British Columbians? And he wants to do it by increasing car insurance costs for all drivers in the province to pay unlimited experts for people in injury claims. We’re not proposing to get rid of experts. We’re not proposing to do that at all. We’re saying: “How about three, okay?” and “You can have more if it’s going to be unfair to limit you to three. Just go to the judge, and if ICBC doesn’t agree with you and they lose, they have to pay the cost of the application.” Not unreasonable.

[4:30 p.m.]

This system, this whole system the member has already voted in favour of preserving by voting against the reform bills again and again…. He wants to preserve it. I don’t know why. But the member should not delude himself that he is protecting low-income British Columbians with these votes. He is protecting a system that is broken, and it’s inexplicable to me why he would defend this system.

[R. Chouhan in the chair.]

In any event, it’s important to underline one other piece, which is that this bill is not exclusively a motor vehicle injury bill. It starts with motor vehicle injuries because of articles in the Province like I was reading from that are corroding the public’s confidence in our justice system. It starts with motor vehicle injuries.

But remember, right now we’re on section 2, which is explicitly about expanding it to all personal injury proceedings. Yes, B.C.’s initiative is different than other provinces’, but because B.C. is different than other provinces…. We can learn from the experiences of places like Ontario, where they had a less restrictive rule that didn’t work. We want a rule that works to control these things.

He is insistent that this is improper. Okay. I hear the member. I disagree with him. I would say I would be remiss in my duties to fail to recognize the impact of the public’s confidence in the justice system when someone goes to court to get $127,000 and walks away with $22,000 because the cost of the proceeding was $105,000, including a single $11,000 expert report.

I encourage all members to vote for this to support low-income British Columbians, and beyond that, to support public confidence in our justice system and to address a long-standing issue in our justice system.

Section 2 approved.

On section 3.

M. Lee: Well, you know, I think that we are opening and closing in various ways through this committee stage, and I would just say in response that what I’m troubled by, of course, is the ongoing conflict. That is the way that this government and the Premier and the Attorney General have positioned ICBC — over and above everything else. So who is protecting the rights of injured British Columbians here? That’s what I’m asking. That’s what my concern with this bill is.

The way that it’s been presented, the methodology and the way it’s been approached, is informed somewhat, of course, by rule 11-8, when the Attorney General unilaterally brought that forward, and it was ruled unconstitutional, and then brought this legislation forward in ways to address some of the challenges identified by the chief justice in that Crowder decision.

What we’re finding, of course, is that this bill goes over and above and beyond. It’s going much further than any other jurisdiction in this country. It’s not just about the income level of British Columbians. It’s all British Columbians — to have those rights, to seek that redress, to seek full recovery.

[4:35 p.m.]

This bill, through the limitations around experts and the way that it’s done through disbursement caps and a per-expert limit, goes far and above and beyond the restrictions in other jurisdictions, as I’ve said. This is the concern. But fundamentally, it just demonstrates again the conflict that’s in place.

If the Attorney General was bringing forward this bill separately, that might be a different discussion. We’d still be having discussions regarding the nature of this. But when it’s been done in the colour of ICBC, when all the data around disbursements is only centred on motor vehicle proceedings, there is no data here that the Attorney General is able to share with us about personal injury.

The impact assessment, really, of that 5 percent disbursement cap has been around motor vehicle proceedings. That’s the focus here. As much as the Attorney General suggests that the effect of this bill would be broadened in the future, we don’t know that. The focus is on motor vehicle claims. That’s the purpose of this bill, and it should be with an expectation of cost savings. That’s the way it was positioned before. But again, it’s a hope. It’s a hope when discretion of the court only goes to the number of experts, not to the disbursement cap or the amount recoverable per expert report. That is set by regulation.

With that, again, I am not supportive of this bill and continue to have concerns regarding the Attorney General’s conflict.

Hon. D. Eby: Now we hear from the member: “Well, maybe. You know, I’m not totally in favour of the experts. Maybe if this was separate from motor vehicle claims, we could have a discussion about how to fix the expert problem.” What? What? Okay. You know, either there’s an issue with experts or there isn’t.

This bill deals with the issue of experts. Now the member, on a point of principle known only to him, that the Attorney General, the chief law officer of the province, involved in all of the litigation involving government, can’t deal with the rules affecting litigation that he may or she may have responsibility for…. What? Unprecedented allegations of conflict.

In any event, he now says that he’d be willing to talk about restrictions on these outrageous expert reports if the context were different. If certain, you know…. Maybe then he’d be willing to stand up for low-income British Columbians and against people who charge $10,000 for a single expert report in litigation and take that out of the settlement of an injured person. Okay.

Well, this side of the House has chosen a side which is the same side as every commentator that has identified major issues with expert reports in our court systems — driving costs, complexity, unnecessary adversarialism without improving the outcomes of the court system. We’re going to bring those costs down in all personal injury matters. We’re going to deal with the expert problem.

Unfortunately, without the votes of the other side, because the context isn’t quite perfect, the way they’d like it, to vote on this bill and have the discussion…. I don’t know what to say. Either there’s an issue, or there isn’t. Either you support the mechanism or you don’t. But this is sort of an objection not about the bill, the mechanism, the issue of experts. Apparently it’s an objection about something more ephemeral.

Well, all I can say is thank goodness there is a government willing to tackle these issues. I’m very grateful for the support of the Third Party and the independent member who recognized the need to tackle these issues, because it’s a minority parliament.

Section 3 approved.

On section 4.

[4:40 p.m.]

M. Lee: Well, I think the Attorney General continues to demonstrate his ability to put words out there — words that I didn’t say. I don’t think we need to reiterate the entire committee proceeding. I think it’s quite evident that I have significant concerns about this bill and the restrictions in the way that it’s framed, regardless of whether it’s for motor vehicle proceedings or not.

Secondly, this is unprecedented. That is a word the Attorney General used. As I’ve said in this House, it’s unprecedented that we have the Attorney General of this province also serve as the minister responsible for ICBC. That’s never happened. There isn’t that conflict that arises in other provinces of this country. This is not an ephemeral discussion. This is a fundamental one. And as a result, it does colour the review of this bill, as we’ve talked about throughout.

Unfortunately, we don’t have that opportunity to have a discussion of this bill without that conflict overhanging all of this. So in terms of the measures, the restrictions that are put out in this bill, they’re clearly to benefit ICBC. We understand the overall cost structure, but the fact of the matter is that there is a balance. There’s a balance between both the plaintiff and the defendant here, not just the defendant.

These are the concerns that we have with the bill. I know that the Attorney General will continue to want to talk about what’s happened in the past. But the fact of the matter is that this is his responsibility today. This is the responsibility he agreed to take on when the Premier asked him to serve both as the Attorney General and the minister responsible for ICBC. How one individual can divorce himself in his mind from those two responsibilities….

There ought to be someone who is responsible as the chief legal officer for this province. That’s the role of the Attorney General. It’s not to be responsible also for the chief litigant of this province — the defendant — when we’re talking about individual British Columbians who are having to take on a large Crown corporation — a corporation that, as a defence, doesn’t have the same limit on it in terms of its resources.

This is the concern, and I will continue with this discussion as we look at the next bill.

Hon. D. Eby: I know that I did this. I shared with the member, the last time we were here, the story of Suzanne Anton, Attorney General for the B.C. Liberals, going into the rules committee and announcing that she wouldn’t make the rule changes she’d already agreed to because she “didn’t realize they would cost ICBC more than $250 million,” which caused the whole rules committee to resign en masse.

I know the member knows that happened. I know he knows it isn’t ancient history. It was 2016. It was the second-last year of the last administration of the government. He knows those things happened. So for him to stand in this place and make the kind of accusations he does about what the role of the Attorney General should be, knowing that history of the last B.C. Liberal administration and how they conducted themselves around the rules committee, is a little bit much to take.

Section 4 approved.

Title approved.

[4:45 p.m.]

Hon. D. Eby: I move the committee rise and report the bill complete with amendment.

The Chair: Motion carried.

G. Kyllo: Mr. Speaker, I was watching the screen and counting the votes, and you announced that the motion passed before all the members had even put up their voting cards. From my count, the nays have it.

The Chair: Member, the procedure is that if any member disagrees with the Chair, call division. I didn’t hear that call at all.

G. Kyllo: On division.

The Chair: On division. That’s fine.

Motion approved on division.

The committee rose at 4:46 p.m.

The House resumed; Mr. Speaker in the chair.

Reporting of Bills

BILL 9 — EVIDENCE AMENDMENT ACT, 2020

Bill 9, Evidence Amendment Act, 2020, reported complete with amendment.

Mr. Speaker: When shall the bill be considered again?

Hon. D. Eby: With leave, now.

Leave granted.

Third Reading of Bills

BILL 9 — EVIDENCE AMENDMENT ACT, 2020

Hon. D. Eby: I move the bill be read a third time now.

[4:50 p.m.]

Mr. Speaker: Members, sorry for the delay. The question is third reading of Bill 9, Evidence Amendment Act, 2020.

Bill 9, Evidence Amendment Act, 2020, read a third time and passed on division.

Hon. D. Eby: I call Bill 19, COVID-19 Related Measures Act, committee stage.

Committee of the Whole House

BILL 19 — COVID-19 RELATED
MEASURES ACT

(continued)

The House in Committee of the Whole (Section B) on Bill 19; R. Chouhan in the chair.

The committee met at 4:52 p.m.

The Chair: The committee will be in recess for five minutes.

The committee recessed from 4:52 p.m. to 5 p.m.

[R. Chouhan in the chair.]

On section 8 (continued).

Hon. D. Eby: I seek leave of the House to stand down the amendment to section 8 and resume debate on section 8.

Leave granted.

A. Olsen: Just to pick up, sort of, where we left off yesterday, I had questions around section 8, which is the section that adds 10.1 and 10.2 to the Emergency Program Act.

Maybe I’ll ask this first question again. Section 8 creates a new permanent section in the EPA, the Emergency Program Act, that creates new powers and new tests in a piece of legislation that’s created ostensibly as a temporary stopgap measure due to the novel challenges of COVID-19. Why are we making permanent changes to the EPA?

Hon. D. Eby: It’s not the intention to create any new powers here. These are powers that already exist under the act and were, in fact, used by government during the most recent emergency. What it does is it removes them from the Solicitor General and passes them to cabinet. This is a best-practice approach, modelled in part on Ontario.

Where you’re going to override a statute, you probably want to have the minister who is responsible for that statute participating in the decision-making around overriding it. But also establishing a new proportionality test…. It’s a significant step to override an existing statute in an emergency. So the government needs to be able to explain itself to a third party, namely the courts, that there is proportionality in the step that was taken, the impact of the step that was taken in the emergency and the impact of overriding an existing law.

There is a new restriction in place, a new requirement around government to have to explain itself if the order is challenged later in court, a movement of the power away from one member of cabinet to cabinet as a whole. That is the intent of the section.

It also addresses a concern of the Ombudsperson that there needed to be more explicit clarity around the authorities and any restrictions on overriding statutes or limitation periods. So it addresses the concern of the Ombudsperson as well.

The reason for this being permanent in nature is for it to be there if there is another non-COVID emergency between now and the completion of the modernization work around the EPA.

A. Olsen: Is it the government’s view that the parts of 10.1 and 10.2 are a better outline of the authority the government already possesses? And just to be clear, there are no parts of this that are creating new powers or authority.

[5:05 p.m.]

Hon. D. Eby: There is a slight refinement to my answer. I thank the member for his question. So 10.1 is an outlining of the authority that the minister already has and, as I said, places it with cabinet and puts restrictions on its use — that it has to be proportional. That is all existing powers. But 10.2 is new in that it allows the enforcement mechanisms of the home statute, the one that’s being modified, to be used instead of Emergency Program Act defence provisions.

I wouldn’t regard that as a new power. But it is, kind of, in that without it, you’d need to rely on the Emergency Program Act defence provisions. With it, it gives you an option to also use the enforcement mechanisms of the statute that’s been modified.

In that sense, just to be sure that I’m completing my answer to the member about new powers, it is a modification to existing process.

A. Olsen: Moving to sub (3), can the minister explain how the benefit test outlined in sub (3) operates? Can he perhaps explain the wording that’s used in the provision? Why are we comparing the benefit of the provision remaining in place versus the benefit of changing it, instead of looking at the cost of changing it?

Hon. D. Eby: It is unusual language in the sense that when you’re just talking to someone, you might say: “Well, what’s the benefit of doing X versus the cost of the status quo?” This is assuming that the status quo has a benefit — that this is a duly enacted law by the Legislature and that certainty that it exists and that it applies is a benefit to the public. You have a benefit of just leaving the law as it is. Any kind of an override or a change to that through an emergency order is going to have to demonstrate that the benefit of that override is proportionate to the benefit of leaving the law as it is. That’s why you have, essentially, comparing a benefit to a benefit.

It’s important to note that “proportionate to” doesn’t mean equivalent. It means a balancing test of the risks and benefits on both sides, either leaving the law as it is or intervening with the emergency order. If you make the regulation to change the enactment and that has a very small benefit compared to the benefit of leaving the enactment as it is, then the regulation wouldn’t stand.

I do understand that it’s not typical language and where the member’s question comes from, but it is meant to underline to a reviewing court or to cabinet that there’s a benefit to leaving the law as it is. You’d better make sure that the benefit of your intervention is proportionate to just leaving the thing alone, because you’re going to have to, potentially, explain that to a reviewing court later.

A. Olsen: What types of constraints does it place on the exercising of powers under subsections (1) and (2) of 10.1?

[5:10 p.m.]

Hon. D. Eby: It’s roughly the same answer I gave. The main constraint it places is that it tells cabinet that in making this order, they need to be able to show to a third party that’s independent of government that the benefit of the emergency order makes sense and is proportionate to the intervention.

An example would be if you make an emergency order, under the Strata Act, that you don’t have to have your AGM because there’s a restriction on meetings or gatherings of 50 people or more. Clearly, there is a benefit to leaving the Strata Act as it is. You have to have the AGM.

This is a law that was passed by the Legislature. There is a benefit to that. But there is a far more significant benefit to saying that you can have this meeting virtually because there’s a public health order that makes it illegal for you to enact a meeting as described in the Strata Act. So the benefit of the emergency order far outweighs the benefit of leaving the law as it is.

As an example, if you can’t make that kind of comparison and illustrate to a third party that the benefit of the intervention outweighs the benefit of leaving the law as it is, then you run the risk of having the regulation or the emergency order overturned. That, obviously, would create a significant amount of uncertainty and problems. It’s meant to provide that connection between the impact of the intervention and the impact of intervening in a democratically passed law.

A. Olsen: Can the Attorney General point to how any other legislation that uses the same wording for a benefits test is being used in this section?

Hon. D. Eby: I’m advised that the Evidence Act uses a similar kind of proportionality test, but the explicit language of this test is different than that. It’s just similar.

The language here is drawn…. I’m advised that drafters looked at other jurisdictions and their tests and safeguards that they had in place as well as academic literature on emergency powers. I don’t have specific examples for the member, but I’m sure if you were particularly interested, I could find that.

The simple answer to his question is no. There is not a precedent for using exactly this language in either B.C. statutes or other emergency statutes that we’re aware of, although it is very much of a species of safeguards that are in emergency powers legislation around the world to ensure that interventions by government, outside of the typical democratic process, during an emergency are proportionate and make sense in the circumstances.

A. Olsen: Thank you to the Attorney General for the answer.

Are there any other constraints or tests on how the Lieutenant-Governor-in-Council can exercise powers provided to them in section 10.1?

[5:15 p.m.]

Hon. D. Eby: The first safeguard is that there needs to be a state of emergency. Section 9 says that the minister has to be satisfied that there is an emergency. The definition of “emergency” talks about that there’s a present or imminent threat that requires urgent coordination. For the exact language, I direct the member to the definition of “emergency” in the act. So first of all, you have to be able to justify that there is, in fact, an emergency and that a state of emergency was properly declared.

The second safeguard is that the regulation-making authority is only able to be exercised for the purposes of preventing, responding to or alleviating the effects of the emergency. So that’s another threshold requirement. First of all, you need there to be a demonstrable emergency. Then, when you’re using the regulation power, you can only do it to prevent, respond to or alleviate the effects of that same disaster, not for other purposes.

Then there’s a third limit in place, which is the proportionality test. When you intervene…. You’ve got an emergency. The regulation is to respond to it or alleviate the effects of it or prevent it. Your intervention also has to be proportional. We spent time talking about that — if the benefit of making the regulation is proportionate to the benefit of just leaving the law as it is.

Finally, all of this is overseen by the courts. They could potentially overrule or overturn a declaration of a state of emergency if the test wasn’t met, the regulation-making authority was not used for the purposes required by the act or the intervention was not proportionate.

Those are the tests and safeguards in place around how the powers are proposed to be exercised.

A. Olsen: Just a final question. Thank you to the Attorney General for these responses.

I think the challenge that we’ve been working through since the bill has been tabled is this balance. It was articulated, I think quite well, yesterday. One of our colleagues mentioned that it’s important that government be given the opportunity to be able to respond when a response is needed. That, I think, is very important, and we saw those powers being exercised quite responsibly due to COVID-19.

There is also the job, which we have as legislators, to make sure that we have that level of oversight, recognizing, with gratitude, the amendment that we will be voting on later today with respect to the reporting of the Legislature.

One final question to the minister. Does the minister feel that there’s adequate legislative oversight for the powers exercised by the government in a state of emergency?

Hon. D. Eby: Yes. I think that the already existing oversight was improved by the amendment brought forward by the Third Party to require reporting to the Legislature of any emergency order through the Speaker’s office.

I agree with the member. It’s important to respond quickly in an emergency and to balance that with transparency and accountability through the Legislature. The practices to date, I think, demonstrate our government’s commitment to that. This bill will buttress that and provide greater accountability and proportionality tests and more oversight of some of the powers that the Ombudsperson has expressed concern about.

M. Lee: We talked about this bill in committee yesterday. It’s certainly my view that there is not the adequate…. If asked the question…. Is there adequate legislative oversight? I don’t believe there is.

The reporting amendment that has been added to this bill merely tables a report but doesn’t actually give any teeth to it, other than questions that might be asked in QP, questions that could be asked already based on emergency orders that are already out there under the Emergency Program Act. There is no opportunity in the amendment that was passed yesterday to 3.1 of the bill.

[5:20 p.m.]

Having said that, that does go back to the concerns around this particular section 8. We talked at length yesterday of sub 10.1(1), but sub 10.1(2) also does not have the term “necessary” as it is spelled out in the existing 10.1 of the Emergency Program Act. I know that the Attorney General has referred to, as he just did, the proportionality test under sub 10.1(3).

Let me first ask: why is it that in this provision, sub 10.1(2), the determination of necessary is not stated here when it is under the original act under sub 10(1)?

Hon. D. Eby: The advice that we got from the drafters was that the word “necessity” is contained in the requirement under sub 10.1(1) and (2) — that the regulation is to “prevent, respond to or alleviate the effects of an emergency or disaster” and that that necessarily includes the word “necessary.” A regulation that doesn’t prevent, respond to or alleviate the effects of an emergency or disaster would not be permitted under the section. Therefore, if it wasn’t necessary to respond to the disaster, necessary to prevent the disaster or alleviate the disaster, then it wouldn’t stand.

So it’s not an intent to change the test. It’s just drafting language to reflect that the regulations made under these provisions necessarily must be connected to preventing, responding to or alleviating the effects of the emergency or disaster.

M. Lee: I appreciate the response. For courts that look at the Hansard debate on this bill, they have the government’s view about not utilizing the term “necessary” as a distinction from what’s there under sub 10(1).

Just moving to sub 10.1(3), the proportionality test. As the Attorney General responded to the member for Saanich North and the Islands as to whether there are other examples of this formulation of proportionality utilized in other legislation, certainly in response, I heard the Attorney General allude to other commentary around proportionality.

I have also not found this test in any legislation that I’ve reviewed to date, but I have seen commentary around proportionality. For example, again, we’ve talked at length about the Ombudsperson report. He sets out in his report that statutes ought to incorporate a proportionality test. The way he describes proportionality is not in the same manner in which this government has formulated this test. The way that the Ombudsperson describes proportionality is really the criteria that ought to be utilized — and limitations — around how the Lieutenant-Governor-in-Council is exercising this extraordinary power.

I had already set out in my questions yesterday the portions of the Ontario act that relate to those criteria and limitations. That is how proportionality has been looked at and described in other jurisdictions.

[5:25 p.m.]

The Attorney General had cited the inquiry into parliament’s investigation of the emergency response in New Zealand to those earthquakes. It also sets out various recommendations, including the level of review necessary — i.e., an external body reviewing the emergency order to see if it’s appropriate and authorized under the emergency act itself.

There are certainly other ways to determine proportionality. When I look at the Ontario act, again as I mentioned yesterday, there are provisions in the act which are somewhat similar in the sense that they talk about orders in an emergency and how the Lieutenant-Governor-in-Council — this is under subsection 7.1(1) of the act — can “make appropriate orders when, in the opinion of the Lieutenant Governor in Council, victims of an emergency or other persons affected by an emergency need greater services, benefits or compensation than the law of Ontario provides….”

I had mentioned this provision yesterday, before we got to this section, but I will just say it again. When I look at this subsection 10.1(3), proportionality in the way it’s been positioned in this section doesn’t mean a lot. The Attorney General, in his response here at committee stage, has certainly provided reference to a benefits test here and the weighing of risk and benefits. But that’s not what’s stated in this act.

I would have thought, at a minimum, that this legislation would have considered that the benefit of making the regulation is greater than and proportionate to the benefit of the continued application of the enactment. There should be some directional guidance given to future members of this Legislative Assembly as they’re looking at a report, a report that also should set out the rationale on how these various tests, these so-called tests, are being met.

Was there any consideration of adding additional words to this section to clarify: what is the risk benefit analysis the Attorney General has described by the inclusion of the words “greater than” and “proportionate”?

[5:30 p.m.]

[S. Gibson in the chair.]

Hon. D. Eby: The member raises some important issues. He mentions that the Christchurch report recommends that there be an external body to review orders. This proportionality test in this legislation enables our courts to be that external body to review orders to ensure they’re made in accordance with the statute.

He raised questions about what the Ombudsperson recommended around proportionality. We understood that the Ombudsperson recommended that proportionality should be considered. We think we put some meat on those bones with this test. Not only should proportionality be considered, but we need to make sure that the regulation is proportionate to the benefit of the continued application of the law as it is.

The member also mentioned subsection 7.1(1) in Ontario about the test, but he didn’t read the full section. It does talk about if a person might be prejudiced by the operation of the law as it is, which is very close to what we’ve done here in section 3 — that if the benefit of leaving the law as it is, is not there, if someone is going to be prejudiced by it, then your emergency order is more likely to be justified under the test.

Hopefully, that provides him some assurance about external review, about the Ombudsperson’s concerns and about the Ontario model.

M. Lee: I appreciate, again, the response to the various elements of this bill and how greater protections ought to be considered. Again, there are lots of learnings here from this COVID-19 pandemic, and I would hope that in the future, as this government continues to consider modernizing this Emergency Program Act, as we’ve made a number of comments through this committee debate and a few more that I’ll make here, they’ll be considered in that.

To the last point that the Attorney General referred to in terms of the Ontario act, I certainly recognize that it goes on. You know, I think that that prejudice test is helpful, certainly. It’s far more helpful than one word, “proportionate,” as to what that means. I would certainly urge the government to consider having amendments to the Emergency Program Act to fully spell out the various tests, requirements, criteria, limitations around the exercise of extraordinary powers by this government under an Emergency Program Act.

The New Zealand report actually says that orders-in-council should be subject to scrutiny before and after they are made. The Attorney General has certainly talked about what happens after. And for judicial review to occur on emergency orders, that takes some time. There is some process involved there.

The New Zealand report actually refers to consideration of having a panel chaired by a retired judge, for example, looking at these orders before they are made. That is another example, of course, of the further adjustment or refinement of this emergency program order in the future.

I’ll just come back to a few more points before I ask, in the time that I have, another question. When the Attorney General mentions, in answer to the question from the member for Saanich North and the Islands, about what the constraints are around the Lieutenant-Governor-in-Council, clearly there must be a state of emergency declared under section 9 of the Emergency Program Act. That’s how we enter into these extraordinary powers.

Secondly, there must be…. The purpose of the order is to prevent, respond to or alleviate the effects of an emergency or a disaster. You would think that.

[5:35 p.m.]

Those two items certainly provide some framework around the emergency orders and the regulations, if this bill passes, that the Lieutenant-Governor can pass as well. But that’s the whole point. The whole point is there’s a state of emergency. There are measures that the government believes, in its best judgment — although that’s not said either — are necessary — although that’s not said either — that are proportionate.

What does that mean? Well, we had a discussion about what that means, but there’s a fairly wide latitude for interpretation by this government. Not even acting in good faith. That’s another term. There are plenty of other criteria and limitations, words that matter and that provide further constraints, checks and balances, safeguards around the ability of a minister or the Lieutenant-Governor-in-Council to move forward and exercise extraordinary authority under this act.

That’s the reason why the member for Saanich North and the Islands and myself have talked about trying to get at an understanding of that test set out in sub 10.1(3). We’ve heard the response. I think that that, unfortunately, is inadequate. But we’ll hope that if it comes to judicial review, the comments that the Attorney General has made will certainly form part of that review and interpretation of what this provision actually means as it might be applied.

I have one other question, again, only in the time that I have permitting here. Regrettably, I am turning to my last question on this bill. That is this. In terms of other considerations raised by the Ombudsperson in their report, there was also, under sub 10.1(2), in effect, a concern around subdelegation. That is where, in this case, the Lieutenant-Governor is authorizing an issuer of a permit, licence or other authorization or, in sub (d), authorizing a person, tribunal or other body that has a statutory power of decision to do some things, like modify the conditions of a permit, remove conditions of a permit, waive, suspend or extend a mandatory time period relating to the exercise of a particular power.

These are things which are a delegation of authority from the Lieutenant-Governor-in-Council to another body. In the Ombudsperson’s report, he also put recommendations that there ought to be limits around that subdelegation. I would suggest, at a minimum, although the government has taken the view that necessary isn’t needed from the Lieutenant-Governor-in-Council, that the issuer and that third party — the person, tribunal or other body — ought to form a view that it is necessary to do the following things that it’s authorized to do.

To the Attorney General, was there any consideration of the Ombudsperson’s recommendations and concerns around subdelegation?

[5:40 p.m.]

Hon. D. Eby: The intent here is to allow the subject-matter expert to change conditions that might be on a licence. The entity that the statutory power is delegated to is in a better position to make those determinations, but it would be set by regulation. For example, for (c), where you have a patio licence, there’s a new regulation that allows you to expand that patio licence as the regulator. Then you could delegate to the regulator the ability to do that, to make those changes as the subject-matter expert.

Important to note that under subsection (d), there’s a very significant safeguard in terms of “a person, tribunal or other body…to waive, suspend or extend a mandatory time period relating to the exercise of that power.” They would need to give reasons for why they’re doing that. Those reasons, of course, would be subject to judicial review if they decided to make a decision to waive, suspend or extend a mandatory time period, which is an important safeguard in that section.

The Chair: Is there any further consideration of section 8?

Hon. D. Eby: I understood that we stood down the amendment in order to have that debate on section 8, and I just wanted to make sure, procedurally, whether we needed to have the member move his amendment again in order to have a vote properly on it or whether we can go directly into that in order that we can have the vote on his proposed amendment. I have received advice from the Clerk.

I move the committee rise, report progress and ask leave to sit again.

Motion approved.

The committee rose at 5:43 p.m.

The House resumed; Mr. Speaker in the chair.

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

Hon. D. Eby: I call committee stage on Bill 11.

[5:45 p.m.]

Committee of the Whole House

BILL 11 — ATTORNEY GENERAL STATUTES
(VEHICLE INSURANCE)
AMENDMENT ACT, 2020

The House in Committee of the Whole (Section B) on Bill 11; S. Gibson in the chair.

The committee met at 5:47 p.m.

On section 1.

J. Johal: I just had a couple of broad questions for the minister in regard to Bill 11. This government has promised a cultural shift at ICBC from an adversarial and defensive ICBC to one that prioritizes the care of all British Columbians injured in an auto accident. Can he broadly tell us what this will involve?

Hon. D. Eby: Well, part of the problem that we face in the existing system is that ICBC has a legal duty to defend the at-fault driver. That is why the at-fault driver bought insurance in the first place. ICBC also has a duty to provide benefits to the injured driver who is not at fault. They find themselves in the situation where they’re legally obligated to defend the at-fault driver, including in court, but also provide benefits to the injured driver that they’re suing and litigating against in court.

The injured driver is required to pay for their own lawyer out of their settlement that is to come, including expenses. We’ve had some extensive discussions about that. So the injured driver finds themselves in a situation where their insurance company is litigating against them in court and funding the at-fault driver to litigate against them in court. They have to pay for their own lawyer, and they’re expected to turn to the same insurance company that’s litigating against them to obtain benefits.

Obviously, that is an irreconcilable conflict and one that a lot of British Columbians have struggled with. “I don’t understand why I paid for insurance to have my own insurance company funding the lawyers to fight me in court.” So we’re removing that conflict. ICBC will no longer have a duty to fund the lawyer for the at-fault driver. Instead, the duty for ICBC will be to assist the injured driver — or the injured passenger or the injured person — in understanding all of their benefits under the act. That’s one piece. The legal framework will shift, and ICBC’s legal obligations will shift.

[5:50 p.m.]

More broadly than that, when you have a group of people who have come up in a culture at ICBC — an adversarial, litigation-based culture — it’s not hard to imagine that that shapes their understanding of what their expectations are of them in their jobs, which partly is cost control, without doubt, which includes questioning entitlements to various benefits. Does the person meet the criteria to qualify for various benefits, and so on? Also, understanding that there is the litigation context that this all operates in….

The shift under the care-based model is away from the adjuster making those determinations towards the medical team making those decisions. The physician, the occupational therapist, the medical experts make the decisions about the care, not the adjuster. So that shift, as well, is significant and important — that British Columbians know that their care and the care decisions are being made by medical experts and not by adjusters.

The third piece is a more organizational change management piece that ICBC is working on — the training, the supervision, the shift in culture informed by work that was done with similar shifts in Alberta and Saskatchewan as they transitioned away from adversarial models to a care-based model. Public insurers, as well, are moving from the tort-based system. That work continues with ICBC as they get ready for the transition. So the law, the structure around how care is delivered and the organizational culture are all actively being worked on to promote this transition.

Finally, and most importantly, there will be problems. When you have a shift of this nature, when you have a transformation of this nature, there will be bumps in the road. So there need to be safeguards in place to oversee the decisions that are being made. We’ve got three.

We’ve got the fairness commissioner to ensure that the processes followed by ICBC are fair and that they’re fulfilling their legislative duties. We have the Ombudsperson, the independent officer of the Legislature, to report to the Legislature and to the public about what the Ombudsperson is seeing and hearing from people who interact with ICBC. We have the civil resolution tribunal, which also includes a judicial review of decisions coming out of the civil resolution tribunal, an independent decision-making body that will resolve these matters.

So those safeguards are important. I want to be absolutely clear. This is a significant transformation. Those safeguards are going to need to be in place as we work through that transition. They’ll always need to be there to make sure that people are treated fairly by this public insurance corporation in British Columbia.

J. Johal: The Attorney General has gone through a list here. How can he guarantee that the rights or benefits are going to be better protected under this system? I know he’s given me a list, but I’m just trying to get a better understanding. Why does he believe that the rights and benefits of British Columbians are better protected under this new proposed system? This is predominantly going to be a lot of regulations, which we’ll learn about much later than over the next few hours. How can he guarantee that the rights and benefits of British Columbians are better protected under this proposed new system than today?

Hon. D. Eby: Well, first of all, under the current system, a couple of important things have to happen in order for you to be able to benefit from the system we have. First of all, in your collision, it has to not be your fault. It has to be someone else’s fault. Then, if you’re not the at-fault driver — if someone else is at fault, and they hit you — that other person who hit you has to be insured to a level that will actually compensate you for the injuries that you’ve received.

If the person has the bare minimum of basic insurance in the province, it probably won’t cover your full expenses if you’re catastrophically injured. You want them to have at least $2 million in coverage, but likely more if you’re catastrophically injured.

So it’s not your fault. There is somebody to sue that has adequate insurance coverage or adequate assets. Those are two critical pieces that have to happen.

The third is, obviously, that there has to be another car involved. Even if it’s not your fault, and you skid on black ice, you go off the road, and you’re badly injured. Or you hit a moose, and there’s no way you could have avoided the collision. You can’t sue a moose, and you can’t sue black ice. So you’re dependant on what are called the part 7 benefits, which are grossly inadequate for serious injuries.

[5:55 p.m.]

If you were to draw a circle and have it be everybody who’s injured in a collision in British Columbia, there is a small inset in that circle of the people who actually benefit from the tort system, because they’re not at fault. There’s another driver, and that driver had sufficient insurance to cover them. But everybody else who’s injured in a collision is reliant on something called part 7 benefits, which have a very low lifetime limit and do not adequately cover the expenses of catastrophic injury. So you have a child who runs their bike through a stop sign and is hit by a car, catastrophically injured and dependent on care for the rest of their life. That child’s lifetime entitlement to benefits is $300,000 — grossly inadequate.

The new system will cover all injured people — regardless of whether it’s a one-car collision, they hit a moose, they’re a kid who went through a stop sign, or whatever — with at least $7 million in lifetime benefits. We will not have people living in poverty because they were catastrophically injured and there wasn’t another person to sue. That’s just one example of how the new system includes a large number of people who are currently excluded from reasonable benefits.

The second piece is, under our current system…. I think it’s unfortunate, but it has evolved to the point that if you do not have a lawyer to assist you through the process, it’s a difficult process to navigate. I’m not sure that most people would feel comfortable going to B.C. Supreme Court to litigate their own injury claims, so you need to have a lawyer. The way that it works is that a lawyer takes a contingency fee of your award, which is typically around 30 percent of your settlement award plus additional expenses. We have seen the stories of excess there, where people get awarded $127,000, they get $22,000 of that, and the rest goes to the expenses of the system — not an issue under the new system.

Now, the new system is set up through the civil resolution tribunal, which was designed for self-represented litigants. People can still go with a lawyer, but it’s designed to assist people to go through on their own if they need to do that — as is the Ombudsperson’s process, as is the fairness commissioner’s process. It’s more inclusive of people who are injured in car collisions, with better benefits. It’s a system that’s designed for people to be able to go through it with safeguards in place without needing the assistance of someone that will take 30 percent of their settlement.

I’m not saying it’s an unfair amount. It could be a fair amount, given the complexity of the insurance company hiring a lawyer to litigate against you. But just a couple of examples. I’m sure we’ll be able to go through more as we go through the questions on this bill. But I’ll leave it at that as addressing the member’s question about just some examples of why I feel the system will be more fair for British Columbians.

Noting the hour, I move the committee rise, report progress and seek leave to sit again.

Motion approved.

The committee rose at 5:58 pm.

The House resumed; Mr. Speaker in the chair.

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

[6:00 p.m.]

Hon. D. Eby: I call committee stage on Bill 19, the COVID-19 Related Measures Act.

Committee of the Whole House

BILL 19 — COVID-19 RELATED
MEASURES ACT

(continued)

The House in Committee of the Whole (Section B) on Bill 19; S. Gibson in the chair.

The committee met at 6:01 p.m.

On section 8 (continued).

The Chair: Members, a deferred division will take place momentarily on the motion, an amendment proposed by the member for Vancouver-Langara to section 8, Bill 19, COVID-19 Related Measures Act.

We have a sessional order that, pursuant to that, it regulates hybrid proceedings. We’ll take a recess, therefore, until 6:10.

The committee recessed from 6:02 p.m. to 6:10 p.m.

[S. Gibson in the chair.]

The Chair: I call the committee back to order, please.

Hon. M. Farnworth: We’ve got five minutes still.

[6:15 p.m.]

The Chair: Members, we’re going to proceed now with the deferred division. The question is on an amendment proposed by the member for Vancouver-Langara to section 8 of Bill 19, COVID-19 Related Measures Act.

[6:20 p.m. - 6:25 p.m.]

Amendment negatived on the following division:

YEAS — 41
Cadieux	de Jong	Bond
Polak	Wilkinson	Lee
Stone	Coleman	Kyllo
Bernier	Thornthwaite	Paton
Ashton	Barnett	Yap
Martin	Davies	Reid
Sullivan	Isaacs	Morris
Stilwell	Ross	Oakes
Johal	Wat	Rustad
Milobar	Sturdy	Clovechok
Shypitka	Hunt	Throness
Tegart	Stewart	Sultan
Redies	Letnick	Thomson
Larson		Foster
NAYS — 44
Chouhan	Kahlon	Begg
Brar	Heyman	Donaldson
Mungall	Bains	Beare
Chen	Popham	Trevena
Chow	Kang	Simons
D’Eith	Sims	Routley
Ma	Elmore	Dean
Routledge	Singh	Darcy
Simpson	Robinson	Farnworth
Horgan	James	Eby
Dix	Ralston	Mark
Fleming	Conroy	Fraser
Chandra Herbert	Rice	Malcolmson
Leonard	Weaver	Furstenau
Olsen		Glumac

The Chair: We have a couple additional items related to this bill. These are both by voice vote. I’ll bring these forward now.

Section 8 approved.

Title approved.

Hon. D. Eby: I move the committee rise and report the bill complete with amendment.

Motion approved on division.

The committee rose at 6:27 p.m.

The House resumed; Mr. Speaker in the chair.

Reporting of Bills

BILL 19 — COVID-19 RELATED
MEASURES ACT

Bill 19, COVID-19 Related Measures Act, reported complete with amendment, to be considered at the next sitting of the House after today.

Speaker’s Statement

THIRD READING OF BILL 9

Mr. Speaker: Hon. Members, earlier in this sitting, Bill 9, Evidence Amendment Act, was read a third time. I was remiss in not declaring that this is an act — Bill 9, Evidence Amendment Act, 2020. So just to be doubly sure, if you’ll allow me, Bill 9, Evidence Amendment Act, 2020, is an act.

Hon. M. Farnworth moved adjournment of the House.

Motion approved.

Mr. Speaker: This House stands adjourned until 1:30 tomorrow afternoon.

The House adjourned at 6:29 p.m.