Orders of the Day

Hon. M. Farnworth: We are going to go to Motion 6.

Government Motions on Notice

MOTION 6 — JUDICIAL COMPENSATION
COMMISSION REPORT RECOMMENDATIONS
FOR PROVINCIAL COURT JUDGES

Hon. D. Eby: I move Motion No. 6 standing in my name on the orders of the day.

[Be it resolved that pursuant to Section 6 (2) of the Judicial Compensation Act, the Legislative Assembly:

a. rejects the following recommendations of the Judicial Compensation Commission 2019 Final Report as laid before this Assembly on February 24, 2020 for the reasons outlined in Government’s Proposed Response to the Judicial Compensation Commission 2019 Final Report in Respect of Provincial Court Judges, filed in this House; and

b. sets the remuneration, allowances or benefits that are to be substituted for the remuneration, allowances or benefits proposed by the rejected recommendations; as follows:

1. The recommended salary for puisne judges for April 1, 2020 to March 31, 2021 of $287,000 is rejected. The salary for April 1, 2020 to March 31, 2021 is set at $276,000.

2. The recommended salary for puisne judges for April 1, 2021 to March 31, 2022 of $297,000, is rejected. The salary for April 1, 2021 to March 31, 2022 is set at $282,250.

3. The recommended salary for puisne judges for April 1, 2022 to March 31, 2023 of $307,000 is rejected. The salary for April 1, 2022 to March 31, 2023 is set at $288,500.

4. Recommendation 13, that government pay 100% of the reasonable costs of the legal fees and disbursements of the Provincial Court Judges’ Association of British Columbia, including the costs for experts, be rejected.

That the Legislative Assembly accept the remaining recommendations in respect of Provincial Court judges contained in the report.]

I’d like to take a few moments to speak to this motion respecting the compensation that is paid to the province’s provincial court judges.

As members may know, the process that is followed to determine judges’ compensation is necessarily different from collective bargaining. Judicial independence is a cornerstone of our justice system. It is a cornerstone of our democracy and the rule of law — namely, that anyone who is accused of a crime or challenges government before the courts can be sure that their case will be decided by an impartial judge. As such, it is a constitutional requirement that judicial remuneration must not become the subject of negotiation between government and the judiciary. Instead, government and the judiciary make submissions to an independent commission. In British Columbia, the Judicial Compensation Act, JCA, establishes the process for the independent, objective and effective Judicial Compensation Commission.

Every three years the Judicial Compensation Commission reports and makes recommendations on judicial remuneration to government after considering the statutory factors set out in the JCA. The government and this assembly are not bound to accept the commission’s recommendations, but if the assembly wishes to depart from them, the assembly must give legitimate and rational reasons compatible with the common law and constitution and that rest upon a reasonable factual foundation.

[2:30 p.m.]

The commission’s recommendations must have a meaningful effect on the process of determining judicial remuneration. They must be considered by the government and given weight. Overall, the response must respect the commission process and ensure that the process has been effective.

Before I address the proposed response, I want to take the time to recognize the valuable work of the Provincial Court and the Provincial Court judges. The Provincial Court has jurisdiction over most of the criminal cases in this province, as well as the majority of family law matters. The court also adjudicates small claims matters from $5,001 up to $35,000. In 2018-19, there were over 112,000 cases initiated in the Provincial Court in B.C.

In addition to the court’s caseload, the Provincial Court, including its judges, has continually adapted processes to improve its level of service to the public and meet the needs of the justice system. Government especially commends the Provincial Court on its efforts during the COVID-19 pandemic to ensure the court functions as effectively and efficiently as possible in these unprecedented times. Government is dedicated to ensuring that Provincial Court judges are supported to continue to demonstrate their innovation, flexibility and hard work when carrying out their important work of dispensing justice.

Turning now to government’s proposed response to the Judicial Compensation Commission 2019 final report, let me first express my thanks to the 2019 commission members who undertook their responsibilities faithfully: commission chair, the Hon. Thomas Cromwell, a retired justice of the Supreme Court of Canada; Vern Blair; Michael Marchbank; Robin McFee, Queen’s Counsel; and Lisa Southern.

Before I get into the specifics of government’s proposed response, I want to make one clarification to a statement in government’s proposed response with respect to Provincial Court judges. The proposed response states that Crown counsel will receive an increase that is 1.27 percent greater than any increase received by the judges. I have been informed that that is not necessarily so, as Crown counsel salaries are a matter of ongoing negotiation.

The commission’s report makes nine recommendations concerning the remuneration, allowances and benefits of Provincial Court judges. As set out in the motion, government proposes that the commission salary recommendation for Provincial Court judges be rejected and that the commission’s recommendation that cabinet seek to enact a regulation to cover 100 percent of the reasonable cost of legal fees and disbursements of the Provincial Court Judges Association, the PCJA, also be rejected.

In making this proposal, I can assure all members of this House that government has looked carefully at what the commission recommended. Detailed reasons are contained in the government’s proposed response document, which I tabled in the House a few days ago. The proposed response appropriately addresses and gives weight to the commission’s recommendations as well as the statutory factors set out in subsection 5(5) of the Judicial Compensation Act. The proposed response respects the commission process and ensures judicial independence while recognizing that government is accountable for the expenditure of public funds and must analyze the cost of the commission’s recommendations and responsibly balance the competing demands on public resources.

In regard to salaries, government proposes rejecting the commission’s salary recommendations for the reasons set out in the proposed response, including:

(1) The economic conditions in British Columbia and the financial position of the government. Subfactors 5(5)(e) and 5(5)(f) in the Judicial Compensation Act have changed significantly since the commission issued its final report and recommendations.

(2) The commission misapplied subsection 5(5)(d) of the Judicial Compensation Act: “changes in the compensation of others paid by provincial public funds in British Columbia.” The commission’s conclusions concerning the province’s economic position and the government’s financial position must be considered in light of the new reality of the province’s economic position.

The COVID-19 pandemic is an unanticipated public health emergency that arose after the commission issued its final report. The COVID-19 pandemic has had and will have a significant impact on government’s forecasted spending and revenue. Accordingly, the proposed substitute salaries account for the significant impact COVID-19 is having on British Columbia’s current and expected economic and fiscal position.

The proposed substitute salaries also account for the government’s view that the commission did not appropriately weigh the changes in compensation of others paid by provincial public funds. The assembly is entitled to re-weigh this factor alongside the others, and it is proposed that the assembly do this. In government’s view, giving greater weight than the commission did to changes in compensation of others paid from provincial public funds is appropriate and militates in favour of lower salary increases than were recommended by the commission.

Others paid from provincial public funds are generally being held to raises of 2 percent per year and, in some cases, 2.25 percent, on account of government expenditure management policies. The size of the judges’ salaries increases should be considered in this context.

[2:35 p.m.]

Judges’ salaries in 2019-20 are currently $270,000. Government’s proposed salaries would represent a three-year increase of 6.85 percent above the 2019-20 judges’ salary, compared to the 13.7 percent increase recommended by the commission. The estimated fiscal impact of the commission salary recommendations is approximately $14,341,555 over the three years addressed by the commission’s report. The proposed substituted salary increase has an estimated fiscal impact of $6,521,061, which government regards as a significant saving. The proposed salary, as estimated based on available salaries for 2019 and 2020, puts B.C. fifth compared to other provinces’ provincial court judges.

In regard to the costs incurred by the Provincial Court Judges Association for participating in the commission process, government proposes rejecting the commission’s recommendation that government pay 100 percent of those costs. Instead, we propose that the formula for the payment of such costs contained in the Judicial Compensation Act be applied — that government pay 100 percent of the costs up to $30,000 and two-thirds of the cost between $30,000 and $150,000.

The objective of putting a cost formula into statute was to create certainty around the cost payable to the association, having regard to the fact that government is not in a position to control these costs as they are incurred.

Further reasoning for the government’s position is set out in our proposed response document. That concludes my remarks on this motion. I recommend the proposed response to the House, and I look forward to hearing from other members.

M. Lee: The opposition will be supporting this motion as it seems to be a reasonable response from government.

Motion approved.

Hon. M. Farnworth: We will now be going to Motion No. 7.

MOTION 7 — JUDICIAL COMPENSATION
COMMISSION REPORT RECOMMENDATIONS
FOR JUDICIAL JUSTICES

Hon. D. Eby: I move Motion No. 7, standing in my name on the orders of the day.

[Be it resolved that pursuant to Section 6 (2) of the Judicial Compensation Act, the Legislative Assembly:

a. rejects the following recommendations of the Judicial Compensation Commission 2019 Final Report as laid before this Assembly on February 24, 2020 for the reasons outlined in Government’s Proposed Response to the Judicial Compensation Commission 2019 Final Report in Respect of Provincial Court Judicial Justices, filed in this House; and

b. sets the remuneration, allowances or benefits that are to be substituted for the remuneration, allowances or benefits proposed by the rejected recommendations; as follows:

1. The recommended salary for judicial justices for April 1, 2020 to March 31, 2021 of $138,000 is rejected. The salary for April 1, 2020 to March 31, 2021 is set at $125,750.

2. The recommended salary for judicial justices for April 1, 2021 to March 31, 2022 of $142,000 is rejected. The salary for April 1, 2021 to March 31, 2022 is set at $129,500.

3. The recommended salary for judicial justices for April 1, 2022 to March 31, 2023 of $146,000 is rejected. The salary for April 1, 2022 to March 31, 2023 is set at $133,500.

4. Recommendation 13, that government pay 100% of the reasonable costs of the legal fees and disbursements of the Judicial Justices Association of British Columbia, including the costs for experts, be rejected.

That the Legislative Assembly accept the remaining recommendations in respect of Provincial Court judicial justices contained in the report.]

In speaking to this motion, let me state that the process for setting compensation for judicial justices is the same as for Provincial Court judges. As with judges, judicial justices exercise functions that require judicial independence.

The Chief Judge of the Provincial Court is authorized under subsection 11(1) of the Provincial Court Act to prescribe the jurisdiction of judicial justices through an assignment of duties. The 2019 assignment of duties identifies a broad range of jurisdiction for judicial justices, including traffic and bylaw hearings, considering police applications for search warrants and production orders under the Criminal Code of Canada, hearing applications for detention or bail and conducting small claims payment hearings.

While judicial justices’ jurisdiction is more limited than that of Provincial Court judges, they are very important components of the operation of the justice system in British Columbia. They are required to dispense with the matters before them quickly while ensuring that their decisions are fair and just. As with judges, judicial justices are essential to ensuring the court functions as effectively and efficiently as possible to meet the needs of the justice system.

Government commends the efforts of the Provincial Court judicial justices to adapt processes to improve its level of service to the public, especially during these unprecedented times. Government commits to continuing to support judicial justices to carry out their important work of dispensing justice during the COVID-19 pandemic and after.

The 2019 commission’s report makes eight recommendations with respect to Provincial Court judicial justices. As set out in the motion, government proposes that the commission’s salary recommendations for judicial justices be rejected, along with the commission’s recommendation respecting participation costs for the Judicial Justices Association of British Columbia. Government has carefully reviewed the commission’s report, including the analysis and findings that underlie its recommendations. Detailed reasons are contained in the proposed response document appended to the notice accompanying this motion.

Government proposes rejecting the commission’s salary recommendations for the following reasons. Reason 1, the economic conditions in British Columbia and the financial position of the government. Subfactors 5(5)(e) and 5(5)(f) of the Judicial Compensation Act have changed significantly since the commission issued its final report and recommendations. Reason 2, the commission misapplied subsection 5(5)(d) of the Judicial Compensation Act: “changes in the compensation of others paid by provincial public funds in British Columbia.”

[2:40 p.m.]

Government’s reasons for rejecting the salary recommendations for judicial justices are, therefore, the same as those described in the previous motion respecting government’s response to the recommendations respecting judges. One important distinction between the response respecting judges and the response respecting judicial justices is the issue of recruitment for judicial justices.

The commission concluded that there is a pressing recruitment problem with respect to judicial justices, noting that from 2010 to 2019, there were only 11 applicants for new positions and only five new appointments. At the same time, the commission found that provincial court judges are increasingly used to cover shifts for judicial justices. For example, judges covered 10 percent of weekend shifts and 3 percent of midnight shifts in 2018.

The commission also noted that judicial justices in British Columbia are paid less than all other provinces and territories except one. The COVID-19 pandemic has required government to balance the commission’s finding relating to judicial justice recruitment and the need to improve judicial justices’ salaries comparative to those in other jurisdictions with the impact of COVID-19 on B.C.’s economy and financial position.

The significant unanticipated expenditures and the significant anticipated loss of revenues has led government to conclude that while it will support increases in salary, government will not at this time prioritize significant wage increases as a response to the recruitment issue and comparative salary issue identified by the commission.

Government’s proposed salary, a 9.42 percent increase in salaries for judicial justices over three years, represents a higher increase than most others paid from provincial public funds, as government wants to ensure, even during the COVID-19 crisis, that it is moving to improve and not exacerbate the problems identified by the commission. However, it is the government’s view that the increase proposed by the JCC of 19.67 percent over three years cannot be justified in the current economic and fiscal climate resulting from the COVID-19 emergency.

The estimated fiscal impact of government’s proposed salary increase is $633,610 over three years addressed by the commission’s report, compared to the commission’s salary recommendation, which has an estimated fiscal impact of approximately $1,616,958.

In regard to the participation cost of the Judicial Justices Association of British Columbia, government proposes rejecting the commission’s recommendation that government pay 100 percent of those costs. Instead, as with a similar recommendation in respect to the judges association, government proposes that the formula for payment of such costs remain as contained in the Judicial Compensation Act: that government pay 100 percent of the costs up to $30,000 and two-thirds of the costs between $30,000 and $150,000.

That concludes my remarks on this motion. I recommend the proposed response to the House, and I look forward to hearing from other members.

M. Lee: The opposition will also be supporting this motion, as it seems to be a reasonable response from government.

Motion approved.

Hon. M. Farnworth: I call third reading of Bill 19, COVID-19 Related Measures Act.

Third Reading of Bills

BILL 19 — COVID-19 RELATED
MEASURES ACT

Bill 19, COVID-19 Related Measures Act, read a third time and passed.

[2:45 p.m.]

Tabling Documents

Hon. A. Kang: I have the honour to present the Annual Report of the Chief Records Officer.

Hon. M. Farnworth: I call Committee of the Whole for Bill 11, Attorney General Statutes Amendment Act, 2020.

Committee of the Whole House

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

(continued)

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

The committee met at 2:49 p.m.

On section 1 (continued).

J. Johal: I have a few other broad questions that I wanted to ask the Attorney General.

[2:50 p.m.]

The minister has referred to this particular proposal as an enhanced-care model. Is there any difference between this and what is traditionally referred to as no-fault?

The Chair: Attorney General.

Hon. D. Eby: Thank you, Mr. Chair, and good to see you again.

I think I’ve been clear, a few times, in various media interviews: this type of system — where you don’t go through the tort system in court for compensation or for rehabilitation costs — falls under a group of policy approaches that opponents of them typically call “no-fault.” The reason why opponents of these kinds of programs like to call it “no-fault” is that they want to imply that fault doesn’t matter.

Under this proposal that we’ve put in front of the House in this bill, fault is a significant factor. If you are engaging in criminal conduct while you’re driving — drunk driving, other Criminal Code offences — you can still be sued. If you cause a collision, your insurance premiums will still go up. I think it’s an inaccurate term to describe this bill or this program. I think it is a term that is used by opponents of these kinds of systems to cause people to believe that at-fault drivers are getting away with something under these systems.

The interesting piece about that is that under our current system, in fact, it’s the at-fault driver who gets their lawyer paid for by the insurance company, and the person who is not at fault who has to pay for their own lawyer out of their settlement. So I guess, in some senses, our current system is better described as a no-fault system. But that’s neither here nor there. Opponents of this have described it as a no-fault system; the member is correct. I don’t think it’s an accurate term, though.

J. Johal: The minister has in the past, to my recollection, mentioned the Saskatchewan model and the Manitoba model. One, would he view those as a no-fault system? Two, if this is not a no-fault system, is there a system that is similar to the one that you want to introduce, anywhere else in Canada?

Hon. D. Eby: Yes, I think that opponents of Saskatchewan’s and Manitoba’s systems, as well, describe them as no-fault systems. This system is very heavily based on Manitoba’s and Saskatchewan’s systems. They have public insurers. Their statutes and their experiences were heavily consulted and considered by drafters when preparing this. I would describe our system as an evolution of those models.

I don’t consider myself an expert at all in those systems — the system I know best is the one that we’re proposing to this House — but I can advise the member that there are some differences. In some of those systems, you can choose whether to participate in the tort system — the court system — or in the enhanced-care-type system that they have there. Another example is that you may not still sue someone who engages in criminal conduct while behind the wheel in some of these systems.

[2:55 p.m.]

I don’t know what the impact on rates is if you’re an at-fault driver in those systems, but I can tell the member that certainly, the experience in those jurisdictions was a heavy inspiration and a precedent for much of what we’re doing here. The reason for that is quite straightforward. They have public insurers, as we do in B.C. They deliver the lowest rates in Canada to their drivers. In fact, Manitoba issued a very significant rebate that was planned before COVID because they simply took in too much money from drivers.

Their operating costs are much lower, yet they deliver significantly better benefits than we do in British Columbia. Better benefits and lower costs through a public insurer are why they have provided the inspiration here. Other provinces — Alberta, Ontario; private insurers through a tort system, a hybrid tort system or a hybrid no-fault system — were also looked at, but they were not used as inspiration because they are not delivering affordable rates or good benefits. That’s why we looked to the provinces that were having success for our approach here.

J. Johal: The minister says that they borrowed heavily from Saskatchewan and Manitoba. Is it fair to say that those two public insurers refer to their coverage as no-fault?

Hon. D. Eby: I can advise the House that Anne Foy and Nina Bindra from the Ministry of Attorney General…. In case there are questions related to ICBC, Jason McDaniel and Doug Gormican are available as well.

I am advised by this panel of experts that’s advising me that Manitoba refers to their program as a personal injury protection plan. Saskatchewan, I’m advised, does in some areas describe their plan as a no-fault plan.

J. Johal: The plan that we borrowed heavily from — in this case, Saskatchewan — does refer to their system as, in some cases, a no-fault plan. So that’s [audio interrupted].

Hon. D. Eby: Yes, that’s what I just said.

J. Johal: Yesterday the minister had talked about fairness and broadly explained how the system would work, which I appreciate. He had talked about the CRT. He talked about a fairness officer and how those decisions, when made, could be potentially reviewed.

What’s the likelihood that those two agencies would help decisions to be reconsidered if an individual didn’t agree with whatever an adjuster had come down with in regard to their decision? What’s the likelihood of ICBC reconsidering their decision?

[3:00 p.m.]

Hon. D. Eby: In relation to a rehabilitation matter or a medical care matter, the person’s physician or caregiver is prescribing a course of treatment. If the claims adjuster did not accept that recommendation, it would be overturned by the civil resolution tribunal, because in this system the care provider determines what is needed for the patient’s rehabilitation. If it was a non-medical matter — a value of a vehicle, or so on — there’s an internal review process within ICBC; there is a fairness commissioner process, which are non-binding recommendations; and then, of course, there’s the CRT, which are binding recommendations.

It’s very difficult at this time to know what the success rate of various applications would be. But if the CRT ordered ICBC to change their decision, they would have to, so it would be 100 percent of the time that ICBC would be required by law to follow the CRT direction.

J. Johal: I’m looking for a bit of clarity on this, because this is an integral part of the system, and I’m sure the Attorney General would agree.

Could the Attorney General walk me through the process. Let’s say I was an accident victim and was told by an adjuster that I do not need treatment A, B or C. How would a victim challenge that decision?

Hon. D. Eby: Just before I get into detail, I’d like to clarify with the member that in his scenario, a physician or other qualified caregiver has prescribed a course of treatment, and the adjuster has refused to honour that with the appropriate benefits as required. Is that correct, that this is prescribed treatment? See, because that’s an important detail about whether it’s coming from a physician or some other source.

J. Johal: What I’m trying to get to is: if an individual is in an accident and the adjuster says that a certain treatment isn’t needed, what would be the process to challenge that decision?

Hon. D. Eby: What the member is describing is a failure of training. The claims adjudicators will be trained that when there is a medical recommendation for a course of treatment, the client has a right to that treatment.

[3:05 p.m.]

If the claims adjudicator refused that treatment, there would be two avenues available to the client. The first would be an internal review process, to go to a manager at ICBC or to file a complaint through ICBC’s internal process. But it’s not a requirement. That’s one option. The expectation would be that the manager would have been properly trained — that when a physician is recommending a course of treatment, that is what happens.

The other route is to go to the civil resolution tribunal, and ICBC would lose that hearing because ICBC has an obligation to provide that care under this system.

J. Johal: Can the minister touch on the consultation process that’s been ongoing with stakeholders? So much of this still has to be fleshed out. Can he give us a sense of the consultation process and where we are in regards to stakeholders?

Hon. D. Eby: Meetings have been taking place with a range of health care providers and disability advocates since February. This has been on everything related to the design of the system itself to the regulations that will govern the various pieces of the system.

The goal is a system in which people can have confidence that their health care providers and their advocates are supportive of because they helped design it, and they know better than anyone what people need to recover and what they need when they have been injured to the point of permanent disability.

This whole program is rooted in that engagement process. The member is right. It’s very important, and it’s been going on, on a regular basis since February.

J. Johal: Could the minister provide names of the organizations, specifically, that the ministry is speaking to?

Hon. D. Eby: I’m trying to think about how to put this. What I might propose is that I could provide a list to the member rather than to read it into Hansard. That would be my preference. I wonder if the member would be agreeable to that.

J. Johal: I think I would agree to that.

Can the minister tell this House when he believes this consultation will be completed?

[3:10 p.m.]

Hon. D. Eby: The expectation is that the nature of these consultations and the committee will be a permanent feature of the new system — that the consultations will go on through implementation and through the system’s maturity. The reason for that is that I expect there will be some bumps along the road, and we want to be able to identify those as quickly as possible.

The people best placed to advise us about what they’re seeing that’s not working will be the health care providers and the disability advocates, because they’re the ones who are participating in the system and who see the people who are going through the system who are most affected. So our hope is to maintain that for as long as possible. It’s meant to be a permanent feature.

J. Johal: I just want to get back to my previous question. This is not asked in a confrontational manner, but I do want to ask as to why the list of those particular organizations that the ministry and ICBC are currently engaging with cannot be made public?

Hon. D. Eby: It can be made public. But I would like to provide it to the member in writing because my interest is in ensuring that those folks who are helping us put the system together are not subjected to any sort of political campaigns by opponents of the system.

Now, I know I can’t guarantee that. They’ve been incredibly generous with their time. They understand the heightened political nature of the changes that we’re making — that there are many people who are financially dependent on the system as it stands. You know, it’s a heightened environment.

So it can be made public. The list that I’ll give to the member can be made public. It’s not secret, but I’ll leave it to the member’s discretion about how he uses that information.

J. Johal: I understand where the minister is coming from. Have these organizations been asked to sign an NDA, a non-disclosure agreement, because of this heightened interest?

Hon. D. Eby: I’m advised that yes. The current work is on the regulations to support the system and, as a result, because of the sensitivity of the regulations, they have been asked to sign a non-disclosure agreement with respect to the content of the regulations.

They are not subject to a non-disclosure agreement in terms of making statements about the system, whether they think it’s the right direction, wrong direction, good for patients, bad for patients or any of that kind of stuff. But they do have access to sensitive information in preparing this, and also, knowing the content of the regulations before they’re publicly released is also sensitive information. So they are subject to an NDA with respect to the regulations.

[3:15 p.m.]

J. Johal: When you have a public insurer that has been around since the early 1970s, and now we’re looking at a wholesale change, a very significant change, the transition involves HR. A transition may include software. A transition, many would argue, would involve a cultural change as well.

Can the Attorney General provide some context in regards to what that transition looks like? Is there a price that can be put on the significant changes that are coming, in regards to just software, in regards to people? Can you give us a sense of what that looks like?

Hon. D. Eby: I apologize to the member. We don’t have those numbers immediately at hand. But what I can commit to the member is we have estimates coming up in a couple of weeks for the Ministry of Attorney General and ICBC. We’ll have the numbers there. I’ll make sure that we have a good summary of the expected costs.

What I can tell the member is that the estimated savings annually are likely to exceed $1 billion or be in the neighbourhood of $1 billion. The costs will be a fraction of that first-year savings. The costs have already been accounted for in the projected rate savings for British Columbians. British Columbians will be seeing those rate savings independent of the cost of the project.

That’s the good news. The bad news is that I don’t have the numbers with me, but I will have them, or at least some numbers for the member, in the estimates process.

J. Johal: Can the Attorney General confirm that…? As I’ve said earlier, this is a significant change for the corporation, and I appreciate that we’ll have some numbers by the time we get to estimates. But can he confirm that there is going to be hiring of management consultants and significant equipment to make this change and HR changes? I mean, I’m trying to get a sense of what that will entail.

He may not have the numbers, but in regards to some of the systems that will change, I want to get an idea of what this transition looks like.

[3:20 p.m.]

Hon. D. Eby: The member is right. This is a significant project. It involves computer system updates and training costs. There are about 300 people working full-time on this project right now. There are 28 different insurance products that are impacted by it. There are new estimation tools being prepared. Certainly, change management costs are a part of that.

I want to put some specificity around the projected savings. It’s $1.5 billion in projected savings. I think that gives a bit of perspective about what’s happening in terms of the implementation of this new system.

J. Johal: I thank the member for that response. I just have a couple more questions before I hand it over to my colleague from Surrey.

ICBC, off the top of my head, has about 5,200 employees, give or take a hundred here or there. Can the Attorney General give me a sense of staffing numbers in regards to the FTE, full-time-equivalent, after this transition is done? It was 5,200, I think, the last number that I saw. Are we going to have 100 more employees, 500 more employees, 1,000 more employees? Will there be redundancies? Will there be layoffs as well? Can he give me a sense of what ICBC will look like in regards to employees after this transition?

Hon. D. Eby: Just for the record, I’ll note that that 5,200 number includes people working driver’s licence standards — ICBC services unrelated to insurance.

At this point, ICBC doesn’t have projections that they’ll be significantly bigger. It’s important to note two things. One is that the number of employees is highly dependent on the number of accidents. The other thing to note is that we will be…. Essentially, the projection is about a decade, but I think the bulk of the cases from the old system will be through in about five years.

[3:25 p.m.]

So from May of next year for about five years, we’ll be working through all of the cases under the old system. There’ll be two systems running in parallel, which is why it’s difficult at this stage to project five years out from implementation date what ICBC will look like in terms of the overall number of employees. The experience in other jurisdictions is that on transition they delivered significant savings to people in those provinces. The savings tend not to come from the employee composition of the insurance companies themselves but rather from controlling escalating costs associated with litigation.

I often hear people concerned about senior management salary costs at ICBC, which is why we got rid of the bonus program and contained the number of managers as well as salaries. But as sensational as those stories are, the big cost drivers of the insurance bill that people get are, in a significant part, of the order of about $1½ billion of these legal costs.

I definitely understand the member’s question — it’s an important one — on how we manage this transition, how we ensure that ICBC delivers services efficiently. It’s also important to recognize that what we’re doing is taking $1.5 billion out of the system with this change and distributing it to drivers through two mechanisms: reduced rates and improved benefits.

J. Johal: This will be my final question, just a follow-up to what the Attorney General was saying. This is a significant change. But I just want to get a sense of…. I understand the savings. The minister has mentioned $1.5 billion a few times now, but the employee composition, I think, is important. I think British Columbians should get a sense of: is there going to be a significant increase in the amount of employees, a significant decrease, 10 percent? Perhaps there’s some historical context in regards to other jurisdictions. When they have brought in a system like this, has there been a decrease?

I’m hoping the minister can provide a bit more context to that particular question, because I think it’s important for all of us to understand that once this system is brought in, is it the same amount of employees that we need, or will we need significantly more? I understand the cost savings, but I’m just trying to get a sense of the amount of employees that will be required and the costs with that as well.

Hon. D. Eby: I can advise the member that Manitoba and Saskatchewan’s insurers did increase their employee count on implementation. But ICBC is of the belief that because they implemented their systems more than a decade ago, there are significant learnings from what they have gone through and significant new technologies available to ICBC to reduce the dependency on increasing employees, which is why, at this point, they’re not projecting a significant increase in the number of employees at ICBC.

Now, that may change, but at this point they’re not projecting that, and it is very dependent on collision rates in the province. The more accidents there are, the more claims there are, and people need responses within a certain period of time. It underlines the importance of government’s collision reduction programs. Pre-COVID, last year, we were down about 20,000 collisions year over year thanks to our road safety initiatives. COVID, obviously…. The member knows — he’s been talking about a silver lining, I guess, of COVID and people commuting digitally — that collisions are down again quite significantly this year and that those trends seem to be holding even as we reopen the province. I hope they hold for longer.

So it’s incredibly variable. The biggest factor is the number of collisions, and at this point I can advise the member that ICBC is not projecting a significant increase in the number of employees.

[3:30 p.m.]

S. Cadieux: Could the Attorney please tell us — or enlighten me — on average, how many catastrophic injuries are there in British Columbia each year? As well, knowing that those cases take a number of years to settle, on average, how many cases settle every year?

[R. Chouhan in the chair.]

Hon. D. Eby: I can advise the member that it’s somewhere between 400 and 500 catastrophic injuries a year. Of interest, certainly to me, when I first took over the file, was that 35 of those folks every year will eat through their lifetime benefit part 7 limits. That’s where you’re in a one-car collision — through a moment of inattention or a bad decision, you were at fault in a collision. These are people who are catastrophically injured, received their maximum $150,000 in benefits and then were cut off and now live in poverty.

We doubled that to $300,000. Even then, I think the member can appreciate the costs, if you’re catastrophically injured, of rehabilitation, never mind retrofitting your home or your vehicle and potential care if you’re quadriplegic. This is a huge expense, so people will blow through that $300,000 limit as well. The problem is that when you blow through it, then you’re cut off under part 7. This is why it’s these 35 people per year that, definitely, I think about when I think about this new system — the woman I met who ran into a moose and was rendered quadriplegic and used up her lifetime benefit very quickly.

The 400 to 500 people who have catastrophic injury…. I acknowledge that it really depends on how you define “catastrophic.” We had a big debate about “minor injury” previously, so it’s obviously a very sensitive area. But in ICBC’s perspective, there are 400 to 500 a year.

The member also asked about what percentage of claims settle. The data that I’m given is that about 99.9 percent of claims settle. ICBC settles about 30,000 injury claims per year, and a handful do go to court.

S. Cadieux: Thank you to the Attorney General for that. Certainly, I think I know better than most in this House what the costs of a catastrophic injury are and how it affects one’s life. Certainly, from my past experience outside of the House, I did have some understanding of the number of injuries that occur every year. Certainly, it is distressing to know that there are 400 people a year that would be categorized as catastrophic injuries.

[3:35 p.m.]

I can appreciate as well, from the minister’s comments about the no-fault benefits — the current part 7 benefits — that the amount is inadequate. It has been for a very long time. When that change was made last year, I acknowledged that it was long overdue and, frankly, still inadequate. So you won’t get an argument from me on that.

But I do have a question. If there are 400 or 500 people a year having a catastrophic injury, a good proportion of those people, currently, will have the option to sue through the tort system to receive benefits relating to the injury that occurred to them through no fault of their own.

With the stakeholder consultations that are underway and the preparation of this massive change to the structure of the insurance system for British Columbia, how many people with catastrophic injuries who have proceeded through the tort system have been consulted and are being consulted on an ongoing basis as a part of that consultation?

Hon. D. Eby: I thank the member for bringing her personal experience and knowledge to the House. I remember and I acknowledge and appreciate her comments around our modest increase to the part 7 benefits, which I also agree are still not adequate.

The member asks about, in terms of engagement, how we are ensuring to hear that voice from the people who have been disabled by car accidents, received injuries that have caused them permanent disability and then proceeded through the tort system. I don’t have a number for the member. But I can advise that we have very active disability advocates involved in the planning of this system who have spoken out in support of these changes. Their membership certainly includes people who have been very badly injured in collisions and proceeded through the tort system.

I can tell the member that the system that we have is one where if you’re a passenger in a vehicle, like a child or a spouse, and your partner or your dad or your mom is driving and they make a bad decision when they’re driving or they hit a patch of black ice and go off the road, or whatever, and you’re catastrophically injured, you have to sue your own parent. You have to sue your own spouse. Public Guardian and Trustee does that work for children in the province.

It’s an incredibly problematic system. Not only are you very badly injured and facing challenges that come with this disabling injury but also a litigation battle where you’re actually suing your own parent, your own husband or your own wife. It’s another example of how this system does not help people get better and why we believe that this system will be a significant improvement for people.

S. Cadieux: I take from that probably none. The reason I say that is because I know a number of the organizations and advocates that are being consulted.

[3:40 p.m.]

They are very good people, very good organizations, ones that I’ve worked with very closely in the past, some of them. But that does not replace the lived experience of people who have experience with the system.

Now, I anticipate, given the minister’s commentary regarding individuals who have been injured by their own fault, in some cases, and can only access part 7 benefits, that he has a great deal of sympathy for them — as do I, as I’ve said. Clearly, he’s listening to those people and to the advocates that speak for them, but is he listening to people who have gone through the system?

Using the example that he did of having to sue a parent, for example, to receive adequate support to recover and live well is, understandably, difficult. Understandably, it leaves people with some questions that they have to deal with. However, it isn’t really the individual; it’s the insurance. You’re suing ICBC. It’s ICBC’s lawyers that you engage with through the process — through the mediation process, if that comes to fruition, and/or through court.

I would argue that certainly, if it was me who was the at-fault driver and my family member was injured, I would want nothing more than for them to access whatever compensation was required. So I don’t think that his example is a particularly good one. While I agree that going through the process is by no means fun for anyone, the reality is that there is a closure that comes from the tort process. There is a closure to the traumatic event and an ability to gain independence and to take responsibility for making positive choices for one’s own future.

I think there is huge value in that, in a person’s personal recovery and ability to move forward. Now we’re looking at moving to a completely paternalistic system, whereby individuals who are injured, regardless of who was at fault for that injury, are going to be forced at every turn to request, from someone else, the right to receive medical treatment, a prescription, a piece of equipment or a home modification. I can go on for days about the aspects of life that are changed as a result of injury and what it means to have to ask someone, for them to approve an expense so that you can get relief from pain.

Certainly, in the first number of years, one relies greatly on experts, because you are relearning your world. You are relearning your body. You are learning all sorts of things all over again. But I can tell you, as well, that by a number of years into the process, the best person to decide what is needed for an individual — in terms of pain relief, rehabilitation, what works and what doesn’t work — is that individual themselves.

Certainly, through this process, through this change, we are now going to say to people, and government is saying to people: “We know that other people know best what you need for the rest of your life.” I do not find that particularly appealing, but perhaps the minister could explain to me how that will be better for a person like me.

[3:45 p.m.]

Hon. D. Eby: Thank you again to the member for bringing her personal perspective to this important issue. I think the member’s comments really underline the importance of the work that’s being done on this system to ensure it’s designed in partnership with people with lived experience.

I can tell the member that…. She assumed from my answer that it was zero. I think that’s not the case, but there is a good point that she raises that she may know people that should be involved, that have knowledge to bring to the table.

There’s an injury recovery design panel that’s working right now, chaired by Jane Dyson. I’m advised that they’ve already had some preliminary discussions about identifying individuals with lived experience to come and present to them about their experiences in the system. If the member has names to suggest of people in addition to those folks who are already being identified, I’m certainly glad to hear those. It’s an open invitation to members. I welcome that kind of feedback. That’s the intent of the design process.

Where I can tell the member that I think this system is superior…. The member and I are going to have to disagree about the benefits of suing your spouse or your mom or your dad and going through the examination-for-discovery process. I don’t know if the member heard me say that we’ll be working through cases from the old system for the next five to fen years. The reason why we’ll be working through them for the next five to ten years is that there are cases that don’t resolve for a decade. I don’t think that’s a great system.

I can tell the member some very specific examples of why I think this is a better system. I can’t say what’s better or not for her, but why I think it’s a better system overall. Every system has its pluses and its minuses.

The benefits of this system are that in the current system, you are dependent on the insurance policy limits of the person who hits you. First of all, they have to hit you. I think the member and I agree that that is a problem. But whoever hits you.... You can talk to lawyers who work in this area. Claims tend to settle for the value of the insurance policy. If you have $1 million in coverage, if you have $200,000 in coverage, if you have $2 million in coverage, it tends to settle for that amount if you’re catastrophically injured. You’re dependent on how much insurance the person who hit you bought.

A lot of people buy just basic insurance in the province, but the average is closer to $2 million. So you’ve got your $2 million that your claim is going to settle for. Your expenses for the rest of your life have to fall within that $2 million, less the lawyers’ 30 percent. So that’s $1.4 million, less the disbursements. If you’re catastrophically injured, there might have been a lot of expert reports. Let’s just say $1.4 million. It’s $1.4 million for the rest of your life.

It sounds like a lot of money, but keep in mind that the new system has a minimum of $7 million in benefits for people who are catastrophically injured, just by contrast. So it removes that dependency on policy limits.

The second is that under the current system, the court or an expert or an adjuster or somebody has to guess what your future care is going to be. “We think that you’re probably going to need this kind of care, or you’re probably not going to be able to work for this amount of time. Even if you do work, you’ll probably be working at about this capacity.” It tries to put a number on that.

[3:50 p.m.]

Well, maybe they’ll guess too much, which would be fine. But maybe they’ll guess not enough. Maybe your condition will get worse over time, in a way that people didn’t expect. So you’re assuming that risk on yourself in the current system. In the new system, if your injury gets worse, gets more complicated, unexpected complications, you still remain covered.

It removes a significant amount of risk from the person who is injured. I think this is a benefit. The member may not. But you don’t have to go through the litigation process to access the benefits that you’re entitled to. ICBC, instead of having a legal obligation, as they do now, to represent the at-fault driver against you in court, will have a legal obligation to assist you in understanding your benefits and in assisting you in accessing those benefits.

S. Cadieux: So why not just fix…? If we know that no one carries adequate insurance, why not fix that? If we know, from the minister’s earlier comments, that they’ve modelled this on the Saskatchewan system and the Manitoba system and that those systems have the…. At least the Saskatchewan one, I believe, has the ability for people to choose which model they prefer. Why are we not being offered choice?

You know, taking away my right to choice is a problem for me. It’s a problem for me that we are going through this redesign process without, I believe, adequate input from people who have lived through the experience. I think the input is heavily weighted towards the group that is currently underprovided for through part 7, and I think that that, again, is legitimate. So fix that.

But now the minister wants us to believe that he is going to miraculously save everyone who has a catastrophic injury from the heartbreak and the turmoil of the tort system, which, frankly, while difficult, certainly does provide the results it needs to. We’re going to now make people dependent on other people’s decisions on their behalf for the rest of their lives, with the promise of “yes, but there will be so much more money and everybody will be eligible for all the money they ever need.”

Well, I don’t see how that is possible. I don’t see how it’s possible to offer everybody more, to offer everybody whatever they need, yet require them to go through multiple people to access any of that money and still say to drivers: “You’re carrying inadequate insurance, but it doesn’t really matter. And oh, by the way, we’re going to save everybody more money on their car insurance.” I just really don’t see how this is going to solve the problems that are legitimately there with ICBC that we all hear about and we all know about.

I am really concerned about the minister thinking that a switch — taking away choice and taking away that closure on an injury — is somehow better. I don’t think, as the minister says, that there’s a perfect system. Every system is going to have pluses and minuses.

[3:55 p.m.]

I certainly would hope that the minister is taking a great deal of time and that his 300 people that are working on this transition are taking a great deal of time to talk to people who have lived through this process, with all of its warts, and are having that conversation with those people, and not just with individuals who, by virtue of their position with an organization, profess to understand what it is like for those individuals. Because there are going to be individuals, I believe, like me, who think that the system we have, with its warts, is the better way to approach this.

Needing reforms, absolutely. Needing changes, absolutely. But there is value in the processes and the system that we have.

I am appreciative that the minister has offered up the opportunity to present some names, through to him or to someone else, of people who may have input to provide. But I think at this stage, the minister has made up his mind of what’s better. He had the opportunity to get that information and have those conversations before and chose not to do that.

So while I still appreciate it and hope that people will be asked for their opinion, I certainly think you’ll find there are a lot of people who do not think that having the right to sue versus having the obligation to seek approval for every expense for the rest of your life is an improvement.

With that, I will cede the floor to my colleagues again to take up the rest of their questions for the day.

Hon. D. Eby: The member wanted to pass to someone else, but I did definitely want to respond. I understand if the member thinks that I need to do a better job engaging with people. I will absolutely endeavour to do that. I would welcome any suggestions of people she thinks I need to engage with.

What I do need to put on the record is that Jane Dyson is an unbelievable British Columbian who is committed to the rights of people with disabilities and ensuring that their voices are heard regardless of circumstances. She does not purport to speak on behalf of all people with disabilities. She never would. That is totally anathema to her work. I just wanted to clarify that.

[4:00 p.m.]

The member likes the Saskatchewan model, where you get to choose which system she thinks to…. One of the benefits of that is you get to choose. You’re free to choose. It’s true; in Saskatchewan you do get to choose. Less than 1 percent of people in Saskatchewan choose the tort system. In order to keep it the same premium as their no-fault system, the way they do that is by limiting benefits. Otherwise, you can’t do it. So if you have a non-catastrophic injury, the maximum amount you can recover for rehabilitation cost is $30,000. If you have a catastrophic injury, the maximum amount you can access is $200,000.

You know, it is theoretically a choice, but really, for people in Saskatchewan, when they look at the benefits under what is their version of enhanced care, which they call a no-fault system, and when they look at the tort system, they choose the no-fault system. So 99 percent of them do.

The second piece is that the member suggested that every expense would have to be approved individually. The experience of people under part 7 is not that the approval process, or working with the person who is managing their claim, is the problem. The problem is that they run out of money. Regardless, there’s a permanent-impairment payment that comes in a lump sum if you’re catastrophically injured. A huge number of the expenses are all pre-approved, because it is what it is, in terms of the situation that you face.

The member doesn’t believe the numbers. How could it possibly be that you could offer better benefits and lower rates? The reality is that there are huge amounts of legal costs in the system. They are dramatically expensive. When you remove them from the system, it does free up the money to do this kind of thing. That’s why Manitoba’s and Saskatchewan’s systems have been so successful and why, despite successive changes in government, they haven’t changed back to the tort system. It’s because it’s working for people in those provinces.

If you look at what Manitoba just did, pre-COVID, issuing a rebate to people of hundreds of dollars, because their system is working so well — and they already have dramatically lower rates than B.C. — you can see what’s going on.

Finally, the member says: “Well, if the issue is people driving around underinsured, with basic insurance, why don’t you just require people to buy more insurance?” Even $2 million is not enough. To get to the level of coverage that would be required, B.C. would have the most expensive insurance premiums not just in Canada but probably in the world. That’s why we can’t just do that — just increase the benefits for everybody and keep the tort system.

I do understand the member’s skepticism; I do. It is critically important that we have the safeguards in place to ensure that this transition is one that happens in a way that treats people who are injured with respect, that treats people who are injured with dignity and the knowledge that they are the ones who, with their care providers, are directing the care. It shouldn’t be an adjuster. It should be that person, working with their doctors and physicians and occupational therapists and others, to get better.

That’s the design of the new system. It’s not a paternal ICBC bureaucrat who’ll be deciding these things. It is the person working with their care providers to get better.

M. Lee: I wanted to come back to this topic, around the details of this no-fault insurance scheme. When we look at Bill 11, I think it’s very important, at this juncture, to have the kinds of overall understandings of the nature of the bill, in the ways that my colleagues from Richmond-Queensborough and Surrey South have tried to get a better understanding from the Attorney General. The reason for that, of course, is that when we look at the bill itself, by my count, there are 119 items, terms, to be prescribed — terms like “catastrophic injury.” As the Attorney General had acknowledged, that’s a pretty important term.

[4:05 p.m.]

My colleague from Surrey South has just gone through the importance and the damage and the concerns from those who suffer catastrophic injuries. That’s a pretty important understanding that we don’t have. There are 118 other items and terms to be prescribed by regulation after this bill passes. There are 41 provisions which are also subject to regulations. Those provisions include a section that we’ll come to, of course — subsection 169(5)(d) — which says that the government may make regulations that allow ICBC to establish procedures or decision-making bodies for the provision of benefits.

ICBC will just keep making up the rules as we go forward here, rules that have not yet been determined. We’re being asked to pass a bill right now where we don’t even know those procedures. We don’t know the decision-making bodies that are going to be determining the benefits. There is a complete lack of detail here in this bill.

How does the Attorney General expect members of this House to have sufficient clarity and understanding of this bill in order to vote on it?

Hon. D. Eby: Well, the member has already voted against the bill. So it would be an accomplishment if I turned him around in third reading, after committee stage, given that the member has already made up his mind. In any event, the entitlements to benefits are all in the act. In the current act, part 7 benefits are all by regulation. The reason why we made the decision to put the entitlements to benefits in the act was exactly that member’s concern.

People need to know the minimum level of benefit that they’re going to get under the new system. So we’ll put it in the law. Now, it would be preferable, in many ways, to put it in the regulations so that you could adjust for changing circumstances, but it also opens up the possibility that it’d be easier to change it downward without having to put it in front of the Legislature. Now with it in the act, if a future government ever wanted to reduce benefits, at least there would be a debate in the House about it. This is actually an improvement over the existing system — to the member’s point.

Another point — this is an important legal principle — is that a regulation that’s drafted can’t override the statute. The whole thing here — the whole bill, the significant bill that’s in front of this House — cannot be undone by regulations. It just can’t happen.

[4:10 p.m.]

The last pieces. It’s not a secret what our intentions are with the regulations. They’re very technical in nature, and they’re very important. So we have released an intentions paper outlining what our plan is with the regulations, to be transparent about what our intentions are. That is forming the basis of our consultations with the people who know best about this stuff — the doctors, the occupational therapists, the disability advocates and others.

That work, that consultation and co-development of the regulation process, is underway right now. It’s not a secret. The intentions paper is there for the member, and I’ll be providing the member with a list of the groups we’re engaging with so he knows where the feedback is coming from.

It’s not a conspiracy, Member. It’s the sound development of effective regulations that work for community. Then, if they’re not working as intended, it’s relatively easy to fix those regulations to make sure that they’re addressed right away. I hope that assists.

M. Lee: There’s a lot in what the Attorney General responded with. But certainly, just to start off with, if he heard my speech on second reading, he understands the reasons for which I voted against this bill. One principal feature was the fact that there’s a complete lack of details in this bill. How can we possibly vote in favour of a bill that we don’t even understand and appreciate the details that will impact British Columbians? When we’re talking about a fundamental change to a system that’s been in place for decades, we need to understand those details.

I know the Attorney General won’t completely appreciate that, because we saw, when this government tried to make another fundamental change to our electoral voting system, that British Columbians were being asked to vote on a significant fundamental change without the details. British Columbians said no. It’s one of the reasons why they said no. Over 60 percent said no.

Well, British Columbians don’t have the opportunity to vote on this fundamental change to how their compensation might be dealt with in this province in a motor vehicle injury accident. We do. But as Legislative Assembly here, we lack the details — the details that the Attorney General says are spelled out in the intentions paper.

I’ve looked at that intentions paper. The figure that the Attorney General is referring to, I believe, is set out in section 128 of this new act. But the provisions I’m talking about are undefined. Where are the 119 items and the 41 provisions to be subject to regulations? Where are they spelled out in this intentions paper?

Hon. D. Eby: I don’t have a list of whatever the member’s talking about. But we are, fortunately, at some point, going to turn our attention to the bill and go through it. For each instance that the member has identified about an area where he would like additional detail, it’s available to him.

As a side note on the pro rep question, I note that one of the core critiques of the opposition was that there was too much detail and it was too hard to understand. But now, apparently, it was that there was insufficient detail. Neither here nor there.

But the member says he doesn’t understand the bill. I think that’s unfortunate. We offered him multiple briefings — people available to answer any questions that he had about it. I’m glad to, as we go through the bill, do my best to explain and to connect pieces to the intentions paper, which the member apparently hasn’t read. I’ll do whatever I can to assist him in understanding the bill.

[4:15 p.m.]

M. Lee: Once again, there’s lots in that response. I have the intentions paper in my hand. I certainly have read it. I am not seeing the amount of detail that’s left out of this bill — as I mentioned, the 119 items and the 41 provisions. I said the very same thing about the referendum. All of those details were to be left to be determined after the vote. It’s very clear.

But having said that, the Attorney General has referred to the consultation process with stakeholders. I appreciate that he has offered to my colleagues here to provide us with a list of those organizations. We recently, yesterday, had a discussion again about process and stakeholder consultation, and that was in the course, of course, around the minor injury definition. That is a situation where it was very clear what the government’s intention was.

In fact, the government spelled it out. The government said, on February 6, 2018: “ICBC will develop a clear, legal definition of what constitutes a minor injury in British Columbia. The new legal definition will include things like sprains, strains, mild whiplash, cuts and bruises, anxiety and stress from a crash. It does not include…brain injuries, concussions, or other more serious impairments.” That is a direct quote coming out of a government website news release.

When there was further legislation, when proposed legislation had been undergone in first reading on Bill 20 and Bill 22, the Attorney General made a subsequent announcement. “The most serious of whiplash-associated disorders will not be included in the definition, nor will third-degree sprains, strains, broken bones or brain injuries.”

Here we have, in that situation, the government spelling out in great detail what will not be included. We went through the bill process like we are doing now with this bill. In that case, we had specific, clear pronouncements from the government. In this case, we don’t. Where is it defined as to what catastrophic injuries are going to be defined as? We don’t have that definition. But it doesn’t matter, because, as we saw with minor injury, they did exactly, by regulation, what they said they would not do, and in the face of all of the stakeholders, the disability groups and others that they talked about with this proposed change of minor injury.

When the Attorney General assured these stakeholder groups that there would be no such change, which is consistent with the public announcements, this government passed by regulation to extend and expand that definition to include brain injury and concussion.

I raise that as an example as to the concern around the lack of details around this full no-fault scheme. How much is to be determined by regulation after the fact? So I’d like to ask the Attorney General…. In response to a question raised by my colleague the member for Surrey South, he indicated that the ongoing discussions with stakeholders are also in development of regulations. Can the minister advise this House what the status of those regulations is?

Hon. D. Eby: The work is ongoing. I will note that the member tried to make a similar point yesterday about brain injury, when I pointed out to him that the minor injury definition, what is counted as a minor injury, is a concussion where the disabling effects last less than 16 weeks. I understand it’s the member’s position that that is a significant departure from our commitment that brain injuries wouldn’t be in the minor injury definition. A concussion that lasts less than 16 weeks was a real surprise to him.

[4:20 p.m.]

I understand his position, obviously, that flows from that — that someone who has a concussion that lasts less than 16 weeks should go to B.C. Supreme Court and have access to unlimited pain and suffering awards. I don’t take anything away from the seriousness of a concussion. People that have concussions should treat that very seriously. It can have lasting effects, which is why it’s only 16 weeks. But I do not think that someone who has a concussion that lasts less than 16 weeks should go to B.C. Supreme Court and have access to unlimited pain and suffering awards.

One of the reasons why that changed was…. The white paper we issued was for the purposes of consultation. We went out, and we consulted on it. We were asked: “Is it actually your intention that someone who has a concussion that lasts for a limited amount of time should be going to B.C. Supreme Court and accessing unlimited pain and suffering awards? It seems weird that you would have that but you wouldn’t have that for some of these other categories of minor injury. It doesn’t line up.” That’s a good point.

The intentions paper is the basis of engagement and consultation. It is not the regulation. The intentions paper is available to the member. I’m glad he has read it. This is good news. That is our intention. It is the subject of the work that is ongoing right now in developing the regulations.

M. Lee: Thank you to the Attorney General for confirming, at least, that the intentions paper does not set out all of the missing items from this bill. I think the member did that.

When we look at what’s in the intentions paper and when the Attorney General cites what happened with minor injury, it clearly is a case where, regardless of what the government says, you can’t rely on it. It changes. Further discussion, further review.

Well, how is it that there is a consultation process going on right now to design these regulations, which we have not seen and will not be privy to in this House, yet…? The intentions paper that this government is using certainly doesn’t mean anything, because it can change. There could be another white paper. There could be another consideration.

Whatever is being put in front of the stakeholder groups that this government is currently consulting with will change. It has been demonstrated. This is the track record of this Attorney General and this government. You can’t trust them. Stakeholder groups that have been through this process of minor injury trusted this government, and their trust was broken.

This government is asking British Columbians and those stakeholder groups to trust them. “We’ll work out the details. We’re going to work them out. We’re getting consultations.” We’ll see it in the fall, after this bill passes. We’ll see what the regulations look like. They may be very different from what consultations and input these stakeholder groups have provided. That’s what has happened in the past. We’re being asked here to trust this government in this way for a very complex, fundamental change.

I was just talking about one definition, minor injury. There are multiple definitions to be defined in this bill. I mentioned before the 119 terms, 41 provisions.

One of those provisions talks about, under section 169, regulations that would include exceptions to the provision of benefits, establishing limits on the entitlement to benefits, establishing conditions on the entitlement to benefits, establishing conditions in relation to the operation of an exception or a limit established by regulation, respecting procedures for claiming a benefit and respecting duties and obligations of a person claiming a benefit.

The last one is a real zinger. Why is that? Well, we have the Lieutenant-Governor-in-Council determining what the legal duties are — not the courts, not the justice system. We’re talking about how this government will limit the entitlement to those benefits.

The member for Surrey South talked about…. How is it possible that this government put this forward as saying you’re going to get everything you want and there are no limits? But there are limits, clearly.

[4:25 p.m.]

Not only are you relying on an ICBC adjuster, for your lifetime, to determine your care for complex injuries; you’re relying on them in terms of designing the rules, which we don’t have an understanding of in this bill.

I would like to ask the Attorney General: what is the current expectation in terms of the process around consultation? When will that be available?

Hon. D. Eby: I definitely understand…. The member wants to understand the bill. I want to help him understand the bill, and the easiest way to do that is to go through it clause by clause. He wants to jump to 169. Okay. The regulations are expected to be in place by the end of the year. That’s our target that we’re trying to hit.

A couple of pieces in response to the member’s speech. I’m not asking any of the participating disability groups, rehabilitation groups, doctors, occupational therapists or any of these folks to trust me, to trust the government. I’m asking them to work with us in co-developing the regulations, because they’re the experts.

The member doesn’t trust me. I don’t blame him. He’s in opposition. It’s not his job to trust me. His job is to ask questions of me.

I’m not asking them to trust me, or government, either. I’m asking them to sit down, in good faith, with our team and to co-develop those regulations so that they work for doctors, so that they work for care providers, so that they work for people who are injured. That’s the focus and priority.

The member, as far as I can tell, is hinting but not really saying that there’s a secret conspiracy way of saving this money for drivers. The secret conspiracy way is that, through the regulations, we’re going to restrict these benefits that are in the statute. We say they are available, but we’re not actually going to provide them. This might be a bit more credible if there weren’t already two systems working like this in Canada, with public insurers that deliver exactly these benefits.

You would think that maybe that would have been a news story by now, about those systems. “The way they’re delivering these incredibly affordable rates is by not delivering any benefits to anyone. They’ve created these regs that deny people the benefits that the law says they’re entitled to.” It’s not.

I’m not sure that it’s necessary that the member trust the government, trust me or trust anybody else. But the process that we’ve set out, where the regs are being co-designed by the people who know best about these things…. I hope that that gives him some confidence.

I also want to point out something else, which is that the conspiracy theory that secret regs are going to deny people benefits…. Part 7 duties of people who are injured…. In order to access the no-fault benefits under the existing system, the duties of a person to access those benefits — the legal duties the member is talking about — are all in the regs. They’re all in the regs already. It’s not a change; it’s the same.

[4:30 p.m.]

[S. Gibson in the chair.]

I have the benefit of people who are expert in this area telling me the information that I need to provide the answer to the member. It might be helpful for the member if he asked a question, like if we were on section 169, and said: “Okay, so why is it that the legal duties for people applying for benefits are going to be prescribed by reg?”

Then I could stand up and I could say: “The folks in my earpiece, who are the experts in this area, say, ‘Oh, they’re already set out in part 7 of the existing system. It’s the way that that has been done for many, many years in this province. It’s the way that it’s done in the other provinces. And here’s the content of the expectation of where that regulation will go.’”

Then the member can decide whether there’s a conspiracy or not. It might be another strategy. But I don’t want to tell the member how to do his job.

M. Lee: I appreciate the suggestion from the Attorney General, and, certainly, that’s probably how that conversation will go. But, clearly, it just demonstrates the point that we don’t know how those legal duties are spelled out, because even when the Attorney General provides that response, when we get to that section, there’s no answer. There is: “This is what we expect.”

Well, it’s not in the intentions paper. It’s not in anything attached to the bill, so to what degree can we rely on it? This is a totally new system. I appreciate that models like this are functioning in Saskatchewan and Manitoba. But so much that is done in this province is a made-in-B.C. solution, as we saw with the Evidence Amendment Act, Bill 9. Just the mere fact that another model exists in another province, I would suggest, doesn’t mean much here in this province. We can’t rely on that. We are on totally new ground when it comes to this no-fault insurance scheme.

Let me just ask, though, about something else that the Attorney General said. I appreciate that we’re still…. Before getting into the details of this bill, it’s important to have some basic understandings of the approach that we’re being asked to consider here.

The Attorney General mentioned, in his response to the member for Richmond-Queensborough, that there will be a five-year transition between the current litigation-based system and the new system. Could I ask the Attorney General to elaborate further on what that’s going to look like for that five-year period?

Hon. D. Eby: The member says that this is totally new ground, unprecedented, even though I have explained to the member for Richmond-Queensborough that it’s based significantly on the Saskatchewan and Manitoba models. So I look forward to hearing from the member about the departures in this statute that he feels make this a completely new system.

The member asked about the five- to ten-year transition. That is because, unfortunately, under our broken system that we have right now, which the member seems so enamoured with, it takes people five to ten years to conclude their claims.

So there will be people who — to their great misfortune, in my opinion — are injured on the last day of April next year in a car collision, and they will be in the tort system. They will begin their journey through the tort system.

There will be people injured the day before that and the day before that and the day before that. When those folks start their tort journey, some will finish within a year, some will finish within two years, the vast majority will finish within five years, and some people will not be done their litigation for a decade.

What that will look like is the existing system will carry on until this litigation will be slowly wound down, as the number of cases wind down over a period of a decade. Those folks will go through the old system.

Then as of May 1, when people have a collision, they’ll be under the new system, and they will go through the new enhanced care model. They will not wait a decade for their benefits, and they won’t give 30 percent of the value of their benefits to someone that they need to pay to help them negotiate the system. They will be dealing with an insurance company that has a legal obligation to assist them, instead of a legal obligation to defend the at-fault driver that injured them.

[4:35 p.m.]

M. Lee: Well, I don’t believe this government can have it both ways. If the Attorney General is suggesting that the Saskatchewan and Manitoba system is exactly what B.C. is going to be receiving, why all of the lack of details in this bill?

Hon. D. Eby: The reason for relying on regulations, as the present act does for a number of significant pieces and this current act also does, is that rehabilitation services change over time as practices change over time. Requirements that people have to get better change over time as medicine develops. That is just one example of an area where, over time, these things change and evolve. The best practice work that’s being done with occupational therapists and physicians and so on changes over time. It doesn’t make sense to bring the Legislature back together to pass a new law related to how people recover from a certain type of injury in a car collision, just as an example.

There’s also a reality that despite everybody’s best efforts to craft regulations that make sense, that work, in practice, sometimes things don’t work as you expect. We might get feedback from occupational therapists. They might call up and say: “You know what? Our members are noticing this major issue with how this piece is working. Can you fix it?” We could say, “Oh yeah. We’ve just got to wait for the next legislative session, and we’ve got to draft this statute,” and blah, blah, blah. Or we could fix the reg and have it working right away.

It provides the ability to evolve the system very quickly to respond to what people are seeing, which is why it’s so important, as I mentioned to the member for Richmond-Queensborough, that we have that ongoing relationship with both service providers and advocacy groups for those who are injured in collisions.

M. Lee: I appreciate, with legislation, the importance of some aspects to be kept current and what’s put in the act versus what’s put in a regulation. But there are lots of details that structurally frame this system that would be in the Saskatchewan and Manitoba legislation that’s not set out in this act. Why is that?

Hon. D. Eby: I’m not sure what the political point is, but obviously it is. Because if the member believes that — that there’s an area of concern, something in the bill that is by reg that is in place in Saskatchewan or Manitoba — let’s go to the section. He can tell me what section it is. He can tell me what it says in the Manitoba statute that’s causing him concern that it’s not in this statute.

I can’t play a guessing game with the member. He says this exists. Okay, I believe him. Let’s go through the sections, and let’s work through the bill. Let’s have that debate. I can’t guess what’s in the member’s mind. I’m glad he’s done some preparation on this, but the preparation is of no service unless we’re actually talking about specifics.

M. Lee: Well, I will look forward to having that detailed discussion with the Attorney General as we go through this bill.

I just wanted to come back to one other point. When there was initial discussion here at this committee stage about the term “no-fault,” I wanted to ask the Attorney General to clarify one point.

[4:40 p.m.]

That is, under this Bill 11, when you have a person who is at fault, who hits in his vehicle another person who’s injured as a result of that motor vehicle accident, the at-fault driver will receive exactly, and have access to, the same benefits under this proposed plan as the injured driver. Is that not correct?

Hon. D. Eby: Well, it depends entirely on the injuries received by each of the parties. I want the member to imagine a scenario where a child riding a bike goes through a stop sign and is hit by a car. Now, the member is correct in the sense that the child will have access to the same pool of benefits under the new system as the person driving the car who was not at fault. But I’m not sure that a system that punishes the child who is catastrophically injured in a collision like that, for running a stop sign on her bicycle, is a good one. I hope that’s not what the member is suggesting.

M. Lee: Certainly….

The Chair: Excuse me, Member.

Noting the hour, Attorney General, please.

Hon. D. Eby: Noting the hour, I move that the committee rise, report progress and ask leave to sit again.

Motion approved.

The committee rose at 4:41 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.

Mr. Speaker: Hon. Members, I am advised that the Hon. Janet Austin, Lieutenant-Governor, is in the precinct. Please remain in your seats.

[4:45 p.m.]

Her Honour the Lieutenant-Governor requested to attend the House, was admitted to the chamber and took her seat on the throne.

Royal Assent to Bills

Clerk of the Legislative Assembly:

 

Evidence Amendment Act, 2020

COVID-19 Related Measures Act

In Her Majesty’s name, her Honour the Lieutenant-Governor doth assent to these acts.

Hon. J. Austin (Lieutenant-Governor): Thank you, Kate.

I must say it’s absolutely great to see you. I just look forward to the day when I can see all of you here in person. Hi, everybody.

You know, as always, I want to thank you, really, for your outstanding work, for finding creative ways to actually convene the Legislature and to continue to engage in healthy debate despite all of the challenges that surround us.

I want to thank you for your collaboration and your prompt response in the face of rapidly shifting economic, health and social challenges. But mostly, I want to thank you for the care that you show to all British Columbians. As always, I’m thinking of all of you with the greatest admiration and respect, but mostly with gratitude for all that you do.

All the best. I hope you get some decent time at the end of the summer to enjoy your family and friends. Thinking of you always. Thank you.

Her Honour the Lieutenant-Governor retired from the chamber.

[4:50 p.m.]

[Mr. Speaker in the chair.]

Hon. M. Farnworth: I call committee on Bill 11.

Committee of the Whole House

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

(continued)

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

The committee met at 4:52 p.m.

On section 1 (continued).

M. Lee: Just before that interlude…. I wanted to come back to the discussion we were having about the term “no-fault.”

The Attorney General gave an example. Certainly, we have concern for a child who is riding a bike and is hit. My question is really about the person who did the hitting, the person who is at fault, who ran the red light and hit that child on his or her bike. That person who is at fault, who ran the red light or went through the stop sign, receives access to the exact same benefits under this system.

This system doesn’t differentiate between who is at fault. The person who is at fault gets the same access to these benefits. When we talk about no-fault, regardless of what the system is called in whatever province, conceptually, that’s what no-fault refers to. British Columbians need to understand that those drivers who are at fault receive access to the same benefits as the injured child. Is that not correct?

Hon. D. Eby: The member is incorrect on several points. First of all, he’s incorrect on the scenario that I painted for him.

In my scenario, the child on the bike went through the stop sign and was hit by a car. The child on the bike was at fault, not the car driver. The member says he has concern for that child on the bike. Well, if he does, then he should be concerned about our current system. Under our current system, where that child is at fault, her lifetime benefits are $300,000. If she is catastrophically injured when she runs that stop sign on her bicycle, her family will be caring for her for the rest of their lives with no support from insurance beyond the $300,000. That is not an acceptable situation.

[4:55 p.m.]

I understand why the member flipped the scenario, where the car driver was at fault and the young bicyclist was not. It’s a very uncomfortable scenario. It is one of the realities of our current system, and it is one of the examples of how it is broken.

That’s one way the member is incorrect. The second way the member is incorrect is that the person who is at fault in the collision is not treated in the same way as the person who is not at fault. The person who is at fault in the collision will see an increase in their car insurance rates, first. Secondly, if the person was criminally negligent or in some other way committing a crime while they were driving and is convicted, they could be personally sued by the person who was injured.

There are two different levels of accountability for people who are at fault when they are driving, under this new system, that are not applied to the person who is not at fault. If you are not at fault in a collision, your rates will not go up. You will not be sued if you are not criminally negligent in your driving. Those parties are treated differently by the system, as they should be.

The member is speaking…. This is one more example of the member parroting lines from the personal injury industry in our province. I don’t mind that they are defending their livelihoods. I would too. But I do mind the inaccurate information that they present on that. I especially am unimpressed when the member knows — I know that member knows — that at-fault drivers, under this new system, see their rates go up. Not-at-fault drivers don’t.

I know he knows that criminal drivers can still be sued personally. I know he knows this, yet he still insists on saying that the drivers are treated the same way under the system, that it’s a no-fault system and that fault doesn’t matter. It’s not correct. He knows it’s not correct. He is repeating the lines of the advocacy group that wants to maintain the current status quo system that doesn’t work for British Columbians, that delivers the second-highest rates in Canada and that doesn’t deliver the benefits.

I agreed with the member who spoke and said the benefits in part 7 are inadequate right now. I agree with her. We agree the benefits are inadequate, and it costs too much. So we’ve got to fix it.

I don’t mind having a debate about the issues in this system that are actually there, that are real and that the member takes exception to. But I’m not particularly interested in, and I don’t think it’s helpful, having a debate about things that aren’t real in the system.

M. Lee: Well, I think we’re going to have a prolonged debate about the challenges with this system. To be clear, the reason why I raised the example is responsibility and accountability. Regardless of what the Attorney General is indicating, what I said was access to the same benefits. Of course, it’s going to be dependent on the degree of injury that the driver suffers.

We’re talking about moving to a system where it doesn’t matter whether you’re at fault. There’s no accountability here. If you are a bad driver, a negligent driver or a drunk driver, you’re not held accountable. You will get access to the same benefits. Sure, your insurance rates may well go up, but you’re still getting the same level of benefits, the benefits that are limited for the injured person.

These are concerns that have been addressed, certainly, including by the B.C. branch of the CBA. I know that the Attorney General has received those papers. The Attorney General may laugh at that, but the fact of the matter is that what the Attorney General has done, as the Attorney General of this province, is, basically, blackened the profession.

[5:00 p.m.]

Lawyers have duties. Lawyers have responsibilities under their code of conduct. Lawyers are advocating. To put them all in the same basket of just trying to preserve their paycheque I think is unfair. This Attorney General may try to tar and feather lawyers, but they have an important role in our justice system. He knows that just as much as I do.

I think the playing politics here…. We need to cut through that. We need to deal with the rights of injured British Columbians. That’s what we’re talking about in this bill, and I look forward to further discussion on this bill as it follows.

Hon. D. Eby: I know the member would be thrilled if I tarred and feathered lawyers. He knows that I didn’t do that, and the Hansard reflects that I didn’t do that. So he says these things. I mean…. I’m going to take a step back.

So in my scenario where this girl rides her bike through a stop sign and is hit by a car and is catastrophically injured, is the member really telling me that he would, as a legislator, like to go to the hospital and stand over that little girl’s bed and say: “You know what? You need to take personal responsibility for going through that stop sign. You were at fault in that accident, so I will limit you for the rest of your life to $300,000 in benefits. Because it’s your fault that you went through the stop sign”?

Now, I know that that is an extreme example. There is a spectrum of responsibility. I know that.

Interjection.

Hon. D. Eby: But the member accepts it. The member accepts it. If he doesn’t, then he should stand up and say, “I don’t accept that,” in which case now we’re having a negotiation about where on the spectrum we draw the line.

I tell the member that in this new system, we draw the line at criminal conduct. So if you are criminally convicted…. And he stood up and he said, again, even though he knows it’s not true: “If you’re convicted of drunk driving, you can still be sued personally.”

Interjection.

Hon. D. Eby: See? The member understands it. He just shouted it out. So he would draw the line somewhere else. I’m interested in knowing where the member would draw the line to deny health care benefits to someone.

Interjection.

The Chair: Order. Order please, Member.

Hon. D. Eby: So the member is upset by this, and he should be, because it’s an embarrassing position to say that he would deny health care benefits to a person who makes a momentary mistake, including and up to a child who runs a stop sign on a bicycle.

If I’m wrong about that, he can clarify that, but that just means he’s drawing the line in a different place. I’m telling him where this bill draws the line, which is criminal conduct. And people who are at fault see their insurance premium go up. It’s accountability.

J. Johal: I want to focus a little bit on section 3. Section 3 repeals the section of the Insurance Corporation Act which enables the Lieutenant-Governor-in-Council to direct ICBC to make surplus optional capital transfers out of ICBC. Can the Attorney General explain how ICBC would accrue surplus optional capital?

Hon. D. Eby: I would love to. Does the member want to move sections 1 and 2?

J. Johal: Yes.

Sections 1 and 2 approved.

On section 3.

[5:05 p.m.]

J. Johal: I’ll re-ask that question.

So section 3 repeals the section of the Insurance Corporation Act which enables the Lieutenant-Governor-in-Council to direct ICBC to make surplus optional capital transfers out of ICBC. Can the Attorney General explain how ICBC would accrue surplus optional capital?

Hon. D. Eby: Surpluses and optional capital happen when the premium collected by ICBC is greater than the expenses incurred as a result of claims on the optional side. It’s a straightforward formula.

Now, the section anticipates this happening. And if it does happen, this section fulfils the promise that we made to British Columbians that we would prevent governments from taking that optional capital from ICBC to use for other purposes.

The reason for this is that between the fiscal years ’99-2000 and 2015-16, government directed ICBC to make payments from excess optional capital of about $1.2 billion. Those were previous government decisions. The challenge with taking that optional capital out is that it removes some of the cushion for future years that might be lean years — for example, the kinds of lean years that we had last year and the year before.

The idea of this is particularly relevant in a year like this where we see that accident rates are lower than usual because people are staying at home, telecommuting, quarantining themselves, and so on. Premium is also affected, as are ICBC’s investments, but the accident trends are wildly different than previous years. It’s very likely at this stage, all things being equal, that ICBC will end up with a surplus as a result. We’re not sure about that, but we’re certainly hopeful.

So when you have a year like this where the regular actuarial projections aren’t realized for one reason or another, and there’s a distinct possibility of a surplus, that surplus will stay for the benefit of B.C. drivers, and it won’t be paid out for some other use. That’s why this section is very, very important.

J. Johal: Can the amounts that you’re saying would stay within ICBC on the optional side be transferred to other parts of ICBC such as the basic line of coverage, then? I want to confirm that.

[5:10 p.m.]

Hon. D. Eby: I am advised that previous governments have used optional surpluses to reduce basic premiums and that that would be something that could still happen despite the fact that this provision is removed, because it would leave the money to benefit B.C. drivers. Basic insurance is, of course, the basic coverage that all people are required to carry.

The design of basic insurance and the intent of it is that it is a break-even insurance where anticipated risk is equivalent to the amount of premium that is projected to be collected for any given year.

J. Johal: What would be the competitive effect of such capital transfer?

Hon. D. Eby: The competitive impact would be nothing, because nobody competes on the basic insurance side in British Columbia. But there is a concern if there was a proposal to transfer the surplus from basic to subsidize optional, which is the area where there is competition for premium dollars in British Columbia. You can go from optional to basic because there’s nobody competing on basic, but you can’t take surplus from basic to do optional, because what you’re doing then is taking money from the area where you have exclusivity and applying it to an area where there’s competition to subsidize it, and that’s not permitted.

J. Johal: If you were to envision, let’s say, five very good years at ICBC and they were to have significant surpluses — and as the Attorney General said, you could potentially use that on the basic side — do you foresee that money being returned? If the surplus is significantly built up over four or five years, can you see those rates coming down even more? If you look at Manitoba and Saskatchewan, the numbers are…. Now, they’re different driving environments. I would certainly say that. But the numbers are $1,100, $1,200 in some cases. Can you see a further driving down of rates if those surpluses continue and if ICBC keeps those surpluses?

[5:15 p.m.]

Hon. D. Eby: The short answer is yes. In the scenario that the member paints, of multiple years of surplus, ICBC is likely overpricing optional, and they would be lowering those rates. It just is a matter of: “Okay, we should be closer to break-even on that.” But the surplus accumulated during those five years that the member sets out as a result of the removal of this provision means that the money would have to go to the benefit of drivers, which means that it could be held in reserve, in which case the interest or the investment income from that reserve would help to lower rates. Or in future years, it could be used to offset shortfalls.

There is something called the minimum capital test, which ICBC is failing right now on the basic side because the way it works is that you need to have your projection about how much you’re going to have to pay in a given year — that amount of money. “We know that claims are probably going to look like this. We need to have this amount of money to pay out that claim.” Then you have money above and beyond that, in case it’s more than you expect.

The ratio of your total amount of money against your anticipated claims is called the minimal capital test. It’s got to be at least one. You’ve got to have enough money on hand to pay your anticipated expenses for the year. But it should be significantly better than one in case you have a particularly bad year.

ICBC had to suspend the minimum capital test requirements that the Utilities Commission had set out because the cupboard was bare, unfortunately, after the actions of the previous government, where they used capital to subsidize premiums rather than fixing the underlying problems of the system, as we’re doing here today. It only works for so long, because at a certain point, you run out of money — which is what happened, unfortunately, just after the election.

The discipline of this is twofold. First of all, the bill as a whole hopefully restores some financial health and stability to our publicly owned company, which will provide lower rates. But secondly, it will give governments pause about: do they really want to go to the Legislature and re-enact this provision that allows them to take money out of ICBC, when everybody knows that if the money stays there, it’s going to lower rates for drivers?

Sections 3 and 4 approved.

On section 5.

M. Lee: I just wanted to ask the Attorney General if he could describe what will be contemplated under (h): “any other prescribed activity.” Will that include other activities such as child care, home-schooling, care for the elderly, working remotely, for example?

[5:20 p.m.]

Hon. D. Eby: Examples of potential additional prescribed activities would be things like yard work, community outings, bowel and bladder care but would not include child care, because child care is a separate set of benefits. So it wouldn’t be under this section.

It would not include working remotely, because let’s say that someone was injured, and they weren’t able to go to work, but they were still able to work remotely. This would be a rehabilitation benefit, not under activities of daily living. So if there was some accommodation that was needed at work, some piece of equipment, so that they were able to work, then that would be under a separate section as well.

I may have misunderstood what the member meant by working remotely, but I think that was the intention. So that equipment and those accommodations are under a separate section of benefits.

The Chair: Any further deliberations on this section?

M. Lee: Just looking at the definition of “highway,” what are the alternatives being considered for this particular definition?

Hon. D. Eby: Sadly, this will be my last answer.

The definition of “highway” will have the definition under B.C.’s Motor Vehicle Act. The reason why it’s by regulation is because that’s not the only part of the definition. It also needs to include highways outside of British Columbia, because when British Columbians travel with their insurance, it needs to include highways in other provinces, the United States and so on. So the definition will include those types of highways as well. So you’ll have the definition from the Motor Vehicle Act plus extra provincial and international highways.

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

Motion approved.

The committee rose at 5:23 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 moved adjournment of the House.

Motion approved.

Mr. Speaker: This House stands adjourned until July 13 at 10 a.m.

The House adjourned at 5:25 p.m.