Orders of the Day

Hon. M. Farnworth: In this chamber, I call committee stage Bill 11, Attorney General Statutes (Vehicle Insurance) Amendment Act.

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; R. Chouhan in the chair.

The committee met at 2:28 p.m.

On section 5 (continued).

M. Lee: I just wanted to take the opportunity, now that we are starting the second part of our committee phase on Bill 11…. Before I come back to some of the questions that we had discussed with the Attorney General around stakeholder consultation, I wanted to just take this opportunity to address two points that the Attorney General had made near the end of the last committee debate. He asked me to let him know if I disagreed, and of course, I do.

The Attorney General, himself, confirmed in committee on Bill 11 that there are 400 to 500 catastrophic automobile accident cases per year. The Attorney General further confirmed that of those catastrophic cases, there are about 35 cases per year in which an injured party would exhaust their part 7 benefits under the current rules.

[2:30 p.m.]

The Attorney General did not clarify, although he perhaps should have, that the 35 cases were within the limit of part 7 benefits when that limit was set at $150,000. Of course, we know that that was increased subsequently to $300,000.

The Attorney General also did not mention that under the current system, even at the $300,000 level…. Many of those 35 people would also have tort claims under the current system to ensure that their care and wage loss needs were covered, above and beyond their part 7 benefits.

We know that there are approximately 100,000 bodily injury claims made every year here in British Columbia to ICBC. The example that the Attorney General used, of an at-fault child on a bike, to great emotional effect, was indeed tragic but incredibly rare. The Attorney General knows that. What is not rare, however, is the converse of that scenario, the one where drivers, pedestrians, cyclists are injured by negligent drivers.

Let’s take a far more likely scenario, where a child, on a bike or otherwise, suffers serious injury at the hands of a negligent driver. This is the scenario I thought the Attorney General had given. That is almost every bodily injury claim ICBC deals with, not the very rare scenario he used. When we are discussing laws and changes to laws, like this Bill 11, I think it’s important that we focus on what is likely and common, not those scenarios that provoke the most emotion.

In this scenario, what will happen to that child when that child is injured at the hands of a negligent driver? Well, for starters, she will be reliant upon an ICBC adjuster for the rest of her life. She will need to ask ICBC, cap in hand, for approval to pay for her physical therapy and medication for the remaining years of her life.

Every step of the way, from the moment of the collision until that child’s injuries have either fully recovered or until the end of their life, they will have a relationship with ICBC. Before that child can attend treatment or receive money to compensate them for financial losses, they will need an ICBC adjuster to sign off and approve such funding. That child and their family will have no autonomy to decide what’s best. The ICBC adjuster will decide what’s best and only when it suits them, not when it suits the injured child.

Certainly, we will examine in committee to come here how this will work over the course of an injured person’s life. I expect that the Attorney General will just say to us, “Well,” because now ICBC will have a duty to assist the injured person, “just trust us.” As we look at the duties, particularly in section 120 of this bill, that duty has been the same duty for the past 40-plus years.

The Attorney General also mentioned, in the last stage of the committee on Bill 11, that a person who was injured could sue an at-fault driver under the government’s proposed no-fault system. This government has drafted Bill 11 to allow injured British Columbians to sue at-fault drivers but only in circumstances where that at-fault driver is convicted of a certain crime. Those are situations that this Attorney General feels are fair for injured people of this province to retain their right to sue.

This is an extremely high burden of proof on the prosecution in criminal matters — that is, beyond a reasonable doubt. The evidence in criminal trials is often held to be inadmissible because of the Charter challenges and the like. Because of these challenges, Crown prosecutors often recognize the inherent challenges in proving an at-fault driver was guilty of a crime. They simply drop the charges and strike a plea deal with the drunk driver for lesser, non-criminal offences.

In any of these circumstances, under the Attorney General’s no-fault system, the injured person would have no recourse, no right to sue, no right to hold the at-fault drunk driver accountable.

This is the message that this government and this Attorney General want to convey to the people of British Columbia: You can’t sue a drunk driver unless you can get the prosecution to secure a criminal conviction. While this change will not likely cause people to drive more recklessly, it certainly won’t encourage people to drive more carefully. That is the message this government is sending to the people of our province. We will also consider this in section 116 of this bill.

[2:35 p.m.]

Before we go to those sections, I’d like to address one more item. That is stakeholder consultation. In the last committee stage, we talked at length as to the status of stakeholder consultation. Since that time, we’ve received many letters from occupational therapists about their concerns about the consultation process and the views that have been made.

I’d like to ask the Attorney General: in terms of the non-disclosure agreements that are in place, what is the actual length of term of these agreements?

Hon. D. Eby: I looked and looked at section 5. I didn’t see anything about non-disclosure agreements. I understand that the member would like to redo our last set of debates because it didn’t go that well for him.

The reason why it didn’t go that well for him is that the system he is defending so ardently and enthusiastically is one that benefits a couple of groups of people. I would agree. It definitely benefits the lawyers who work in this area. It benefits the experts, who provide reports in this area and charge $10,000 for one report, and the lawyers, who take 30 percent of the settlement amount that’s paid out by someone, anywhere from one to ten years after the accident.

The member writes off the idea that there should be any concern that people who are at fault in collisions are inadequately covered, including a young girl who drives her bike through a stop sign. “It’s very rare,” he says, “so we shouldn’t worry about it.” Okay. But what about the fact that that falls on the families of these people who have to take care of them for the rest of their lives? It falls on the public purse and taxes, which have to support people who have inadequate benefits.

He suggests things that are simply untrue, and he presents them as factual. He says that I said: “Oh, just trust us. There’s a duty on ICBC. So just trust us.” That is the exact opposite of what I said. I said that one of the hardest things about this system is going to be to ensure that the culture at ICBC changes.

They have had a culture, for decades, where they had a legal duty to defend the at-fault driver with a lawyer, paid for by insurance premiums, to fight the person who was entitled to benefits. One of the hardest things is going to be shifting that culture into the care-based system.

We need to put multiple safeguards in place. I didn’t say: “Just trust us.” It was the total opposite. I’ve explained, many times, the multiple safeguards that we’re putting in place to ensure that people get the benefits they’re entitled to — everything from the civil resolution tribunal, the Ombudsperson and the fairness commissioner to judicial review of the civil resolution tribunal.

The member says that we haven’t done anything on road safety and that, in fact, our system is going to encourage people to drive worse, even though, if they cause an at-fault collision, their insurance rates still go up. He says that we’re somehow changing that. We’re not.

We’re not encouraging people to drive worse. In fact, one of the first things we did, on inheriting the mess that that side of the House left us, was to change the rules to make it significantly more expensive for people who drive badly in our province. They pay huge premiums, not just through their insurance but through additional penalties, when they’re driving recklessly.

The effect of those measures is significant. We’ve reduced accidents by 20,000. So 20,000 fewer accidents with those measures. That’s pre-COVID. Again, I said this the last time we debated. I don’t mind having a debate about the bill. I don’t mind having a debate about the policy. There are pluses and minuses with any policy. There are puts and takes. I acknowledge that openly.

What I do mind is when a member — who has had multiple briefings, who knows what he’s saying — is incorrect and stands up and continues to say things that are incorrect. I know he’s a smart guy, and I know he understands it. I know he knows that if you cause an at-fault accident, your rates are still going to go up. I know he knows — he shouted out “drunk drivers” the other day — that if you’re convicted of drunk driving, you can still be sued personally and criminally convicted. I think that’s an important standard. Don’t you, hon. Speaker?

I think our criminal justice system is one that is fair and one that works. It’s not without challenges, just like any system. There are opportunities for improvement, but I think it’s a fair standard.

He says he would place it somewhere else. I accept that, but the vital piece — and, I think, the duty of people in this House — is to help people understand the bill and to understand what the actual issues are. With all due respect to the member, that speech that he just delivered will not help people understand what the puts and takes are on this bill.

[2:40 p.m.]

One of the puts, I understand from the Trial Lawyers Association of British Columbia, is that there are about 10,000 jobs — lawyers, paralegals, transcribers, experts, people who work with the experts — within the industry of personal injury currently on the legal side in British Columbia, all supported with wages that they advise me are well above average. I accept that.

It is an incredibly difficult thing to say that those folks are going to have to transition their work over the next decade to something else. Obviously, that’s hard to say. That is a very real issue. That is a serious concern. We can have a debate about the impacts of this policy in that regard, but those costs are no longer sustainable for drivers in the province. Those costs are eroding benefits for people who are involved in single car collisions or for people in the scenario of this girl going through the stop sign on her bike.

We have made a difficult decision, which is what governing is about, to say that we are going to transfer money from this administration into delivering lower rates and better benefits for British Columbians. That is a difficult decision. That is a serious policy choice.

The member, instead, pretends that this decision is somehow about introducing a bill that secretly takes benefits away from people. We’re quite open. We’re quite open about saying we’re getting rid of the legal costs. We’re passing on that benefit to British Columbians. You don’t have to pretend it’s about something else. We put it in press releases.

The member wants to defend the experts. He wants to defend the lawyers. I don’t blame him. They bring significant things to the table. But we cannot afford it. Drivers cannot afford it. We cannot afford to give up the benefits for people who are injured in collisions in order to pay for that infrastructure, so it leads it a difficult decision.

Members on one side of that debate; government is on the other side of that debate. There’s no point in wrapping ourselves into a pretzel about a regulation about the definition of the word “highways,” as if that’s secretly going to take benefits away from people. It’s not. That’s not where the savings are coming from.

All the member for Richmond-Queensborough has to do is look at his comments talking about Manitoba, talking about the fact that they have had a stable system for more than a decade that has enabled them to have the capital reserves — because they didn’t have a government that was raiding the capital reserves — in order to provide a rebate when people needed it the most.

The system in Manitoba, the one that the member for Richmond-Queensborough was so excited about, the one that’s able to deliver refunds under a public insurance system, some of the lowest rates in Canada — that’s the same system that’s in this bill. It’s not a trick, not a secret. It’s working in other places. He’s not going to find it hidden in the regs. He’s not going to find it through some other kind of secret trapdoor where all of the money is. He’s not going to find it hidden in a non-disclosure agreement.

We need the expertise of people in this area to assist us in drafting the regulations. If we were not actively engaging experts in this area, the member would be the first one to stand up and say: “Why aren’t you talking to occupational therapists? Why aren’t you talking to doctors? Why aren’t you talking to chiropractors, massage therapists and others, making sure that the system works? Why aren’t you talking to disability advocates?”

The member knows why we need an NDA, because they’re involved in drafting the regulations. People could use this foreknowledge to financial advantage. It’s not a conspiracy. It’s not a secret.

I’ll do my best to get the answer for the member about how long they last. Nothing turns on it. There are no secrets here in the bill. There are no secrets about our intentions in relation to the regulations. We want to copy the successes in Manitoba. It’s on the record, not a secret.

M. Lee: Well, I’m also looking to ensure that we all have understanding of this bill and what’s at stake here. We do have a duty, and I think that duty is to have reasoned discussion and debate about this bill. So when the Attorney General dares to stoop to introduce emotion and tragedy….

We’re talking about 100,000 claims, 100,000 British Columbians injured in motor vehicle accidents a year in this province, and this Attorney General comes back and repositions the whole thing on its head.

[2:45 p.m.]

Of course we have concern for all injured British Columbians, including children. I have three myself. The Attorney General has two. As parents, of course…. But if a British Columbian gets injured by an at-fault driver, that’s what we’re talking about here.

We can continue on and have this debate, and we have. But I think it’s insulting that this Attorney General will turn this whole discussion on its head that way. I take great offence with that.

Let me just say that when we’re talking about holding at-fault drivers accountable, this government has set that standard as criminal conviction. The Attorney General has confirmed that again. I said, in my effort to have understanding here, that when we’re talking about criminal convictions for drunk drivers, the standard is very high. Most often, what happens is no conviction. There are Charter challenges. There are other challenges to the case, typically. Typically there’s no conviction. It takes a conviction for that drunk driver who is at fault to be held accountable under this Bill 11.

I understand that the Attorney General feels exposed by the non-disclosure agreements — the secrecy over this bill, in his words. That’s what it is. No details — 119 details left out, 42 additional. Another couple that the Attorney General has tabled in further amendments to this bill.

There are gaps in this bill. We will have that discussion. As I understand it, these non-disclosure agreements that have been entered into are totally indefinite. Anyone who enters into this NDA with this government can’t speak to the contents of their discussion around Bill 11 indefinitely. Not when the process is done. This whole sensitive nature of process that the Attorney General identified last time around, around regulations. You’d think that the NDA would expire then. Maybe you’d think that this consultation would have been done prior to the introduction of Bill 11. That didn’t happen either.

My concern is this. We’ve been receiving letters that have indicated concerns by the occupational therapists here in this province. I just want to read into the record a number of these concerns.

“I’m aware of many OTs who do not agree with the public statement made by the Canadian Association of Occupational Therapists British Columbia and felt silenced.”

“This position statement was created without a formal survey of its members or other known consultation methods.”

“I understand the Attorney General is saying he’s consulted with the health community, and this is meant to suggest we are endorsing the enhanced benefits scheme. This is simply not my experience.

“My colleagues are frightened of speaking out, frightened of losing their income. Please don’t mistake their silence for agreement. The Attorney General should be ashamed of what he has done here. This entire process is shameful and divisive. The Attorney General has pitted us against ourselves and frightened us. Shame on you all.”

Another one said this: “There are many allied health care professionals similar to our group who currently provide services to ICBC. We are afraid to speak openly for fear of being blacklisted if we speak up publicly against an insurance company which contributes to our livelihood.”

I wish to read in three more.

“Since ICBC has decided to implement a no-fault system, they have been pressuring occupational therapists to support this move.” Pressuring, Mr. Chair.

“There has been an implicit threat that if we don’t support it, then we will be blacklisted from providing any work to the corporation in the future.”

[2:50 p.m.]

“The truth is there was no member consultation on the ICBC changes before their announcement. CAOT-BC’s public statement in support of the changes on the same day as ICBC used the term ‘we’ was grossly misrepresentative of the opinions of the members — opinions that they were not aware of at the time, as CAOT nor ICBC ever sought them out.”

I’d like to ask the Attorney General…. I understand there continues to be great division amongst the occupational therapist professional community, even with that representative body being called into question as to whether they truly represent the views of occupational therapists here in this province. How can the Attorney General go forward on the basis that occupational therapists have serious concerns, not only about the nature of this bill but the way they’re being treated in the consultation process?

Hon. D. Eby: First of all, I’ll note, obviously — the member notes it himself — that the governing body for occupational therapists has endorsed the change. Like any governing body, there will be debate within the membership about what position the body should take.

Occupational therapists play many and diverse roles in the current system. Some are expert witnesses for trials. Some are providing supports to clients. Some do both. It is without doubt that there will be voices in favour of the position taken by the governing body and opposed to it.

I can advise the member this. I’m aware of not a single inference of a threat, or even that ICBC could or would be in a position to threaten someone to participate in any engagement or consultation process. The suggestion, without a basis of evidence, is inappropriate.

Now, I want to point out that the people who are engaging with us are taking a significant risk, because many of them are asked to provide expert reports to the law firms that are the most profoundly affected by this change. If you’re coming to ICBC and government and saying, “Look. I know you’re moving to this new system. I’ll bring my expertise to make sure that it’s done the right way, understanding that this is the direction that government is going to go,” you are very vulnerable to being told: “We’re not interested in having you provide our expert reports.” That could be a significant impact on a source of income for an occupational therapist or someone else.

I also notice who the member reads letters from and who the member doesn’t read letters from. So we’re going to do a test and see if anyone can spot the difference between the letters that he read and the letter that I’m about to read.

“Dear Premier Horgan” — this came in on May 22.

“Four years ago I was a stay-at-home mom to two small children. My husband had a good job at” — I’ll blank it out — “in downtown Vancouver. He liked his job, and he worked hard for our family. We invested our money wisely, and our financial future looked bright for us and our kids.

“Then in the spring of 2016, my husband was stopped in a traffic jam on Highway 1 and was hit from behind by a distracted motorist going at a high speed. I will not go into all the details here, but now my husband is totally disabled with terrible chronic pain and is unable to work. He is unable to do much of anything, and his pain is unrelenting. He barely leaves the house. We cannot go on vacations with him, and doctors have said his condition will never get better. The best way to describe him is that he is like an 80-year-old now in terms what he can do physically.

“We hired a lawyer and naively thought that things would eventually work out. We weren’t going to be asking for anything extravagant. We just wanted his lost wages and future care costs, which are thousands of dollars per month, that we feel were due to us. Nothing can take away his pain, and nothing can change the fact that his future is bleak and the whole dynamic of our family has changed. I was positive, because we live in Canada, and Canada takes care of its people. I love this country, and I had no doubt that things would eventually work out.

“I came to find out this week that the maximum amount we can get from ICBC is based on this distracted motorist’s coverage. Her coverage was one-fifth of what we were asking for. Once the lawyer takes 30 percent, we are left with about four years of living” — all caps, four years.

[2:55 p.m.]

“My husband had about 20 years left until retirement. We are a young family. How is it possible that we are limited to what we can get based on the motorist’s coverage? I am aware that we have to then sue her, but do we honestly think she has the other four-fifths of what we want? We will be locked up in a legal battle for years now.

“We are honest people. We are not out to get more than we deserve. We were even prepared, knowing we may not get everything we think we deserve. But how can we live in a country where, after years of suffering, with a future of unrelenting pain and suffering, we are told that ICBC can only help him out for four years? What are we going to do after that?”

What is the difference between the two sets of letters — the letters that I’ve been reading and the letters the member has been reading? My letters are from British Columbians who were injured under the current system. They’re very real experiences with that system. The member says they’re edge cases. They are not edge cases. They are people’s experiences under this system.

How does the member think that the lawyers on TV pay for those ads? Why does he think that lawyers from Ontario come here to advertise to get clients in British Columbia? Why does he think that happens? Because the system is broken. It rewards the wrong people. It rewards areas where there is no risk. It gives lawyers 30 percent of an amount of money the person would have gotten anyway. And it doesn’t say the lawyer is only entitled to take 30 percent of what the lawyer actually achieves for the person. That’s in this proposal of reforms that we’re putting forward.

This poor mom…. And she will be a poor mom, because she has to support a permanently disabled husband because the insurance system won’t support her, because there wasn’t enough insurance coverage on the at-fault motorist, and the at-fault motorist doesn’t have enough assets to recover through a lawsuit. The member says that her experience is an edge case. It is not an edge case. This is a regular experience.

A colleague in law I know who was involved in a collision as a pedestrian…. She was hit by a car. She was one of two people hit by the car, so they had to split the coverage, and there wasn’t enough to cover her injuries.

These are regular occurrences. If the member spent more time talking to people who are involved in this system and less time talking to the people who are working in the system, the member would notice a profound difference in perspective about how the current system is working or is not working.

M. Lee: I appreciate that we continue the dialogue here and that the Attorney General wishes to continue to draw things out.

We’re talking about the extreme case that the member has referred to in the last committee. The member can stand there and continue to read letters and draw more into this, but we understand the changes that are being proposed under Bill 11. Certainly, we’ll come to those sections about where that duty lies with ICBC and exactly what benefits will be available to both at-fault and injured British Columbians under this bill.

But I do want to come back to the stakeholder consultation, because the Attorney General stated, in response, that any statements of threat would be inappropriate. Well, those statements are coming in writing from the people who feel threatened, so I’m not sure how the Attorney General is substituting his judgment for the professional occupational therapists who feel threatened, pressured.

I mean, the reason why we’re talking about occupational therapists, of course, is day in and day out…. Just like we talk about our respect and support for front-line workers, all health care professionals are there to assist — in this case, occupational therapists helping an injured British Columbian get back to daily living, whether it’s at home or in the workplace or otherwise.

[3:00 p.m.]

These are the clients and the patients they deal with, and certainly we can talk about the challenges that they’ve had with ICBC, the challenges that others have had with ICBC, dealing with ICBC adjusters. As I said here in committee, I don’t see the change in the duty. It’s the same duty. It’s the same duty that ICBC has had for 47 years.

Let me ask again to the Attorney General…. I have another letter here that my colleague and myself have received from the occupational therapists of British Columbia. It starts out by saying: “We are a group of occupational therapists who have formed the OT Alliance B.C. in order to provide our opinion regarding ICBC rehabilitation benefits and the implementation of a no-fault insurance system in B.C. Despite repeated requests both to the Attorney General’s office and our professional association, CAOT-BC, our concerns have not been substantively addressed.”

How were the stakeholders selected for the purpose of consultation, and how were other occupational therapists, like this alliance, left out of that consultation?

Hon. D. Eby: A new group has formed, as I understand it from the member, that disagrees with the core position of the governing body for occupational therapists. I accept that. As I said to the member, there are going to be different views. The member is a lawyer. I know he is. So he knows about our own governance system as lawyers — the Law Society. There are different perspectives on what the Law Society should be doing.

A good example was the discussion about licensed paralegals potentially doing family law. The Law Society asked government for a provision to allow there to be different folks doing work other than just lawyers, a licensed paralegal under the supervision of a lawyer and then a large group of lawyers. To be fair, I think mostly family law lawyers got together at a referendum and overturned that decision.

The internal governance of a governing body, like occupational therapists or anyone else…. There are typically processes where members can make their voices heard one way or another. If there’s going to be a shift in position of occupational therapists, then so be it. But I haven’t seen it yet — in fact, just the opposite. I’ve seen continued support from occupational therapists, their governing body, throughout.

I have to say that almost every group that has asked to meet with me…. Regardless of whether it’s a new group or an old group or a group of personal injury lawyers or others, I’ve tried to make time to meet with them to hear their concerns. I’d be glad to meet with the group the member cited if I haven’t already met with them.

I just had some letters passed to me, and I have to be honest. I really debated about when to make these public, how to make these public, how to talk about this, because it’s really difficult. It’s difficult for the people who have made the decision to assist government in drafting regulations. It’s difficult in the sense that they’re originating with a body that, as Attorney General, I feel an obligation to consult with, but I feel the conduct is reprehensible.

I feel like I need to make it public now because of the member’s inferences. He says he has occupational therapists who feel like ICBC is pressuring them. Now, he doesn’t cite any letters or messages or anything, but he does say they feel pressured. I want to tell the member what pressure really looks like for occupational therapists.

The email, and I won’t identify anyone…. Let’s just suffice it to say that this comes from a personal injury law firm. It’s from an email that was “copied to every major personal injury plaintiff firm in the province.”

[3:05 p.m.]

The author says he is “confident they will all adopt a similar position to the one we’re taking.” I’ve got four or five emails from personal injury law firms that, in fact, did adopt a similar position.

“Moving forward, we will maintain a list of every OT” — OT is occupational therapist — “or OT firm who has signed an NDA with ICBC or for the benefit of ICBC or fails to rescind this in a timely fashion. We will ask every OT whether they or anyone in their firm has signed such an NDA before we engage them.

“We will make it a term of our retainer that failing to disclose that you or someone in your firm has signed the NDA will be grounds for the OT or OT firm to refund to us all of the money that we have paid and to forfeit any fees for work done but not yet billed.

“We will make repeated FOI searches of ICBC to verify our list. We will share this list with other firms and expect they will share theirs with us.”

What kind of list, hon. Chair? A blacklist. A blacklist of OTs that assisted in drafting regulations for the new system.

“Once an OT or an OT firm is on this list, we will take the following steps. One, that that OT and that firm will be permanently disqualified from doing any work for us on any matter whatsoever. Two, if any OT or OT firm, which is a signatory to the ICBC NDA, is put forward by ICBC or any other insurer, we will apply to the court to disqualify them for bias. This will be our permanent position. We will adduce this letter as evidence that the OT and OT firm was aware of our position before they accepted the retainer from ICBC.”

Now, keep in mind that many law firms do both plaintiff work for injured drivers and defence work for ICBC. I’ll put that as a side note.

“No such occupational therapist or occupational therapy firm will be permitted to do rehab work with a TLAG client.” That’s TLA BC advocacy group client. “Any OT or OT firm already in place providing such service will be instantly terminated. This will be our permanent position.

“I hope this clearly conveys our position in this matter. I am happy to discuss this with you but will not change my position.

“I look forward to my firm and my clients having your and your firm’s services for many years into the future. If there are any OTs at your firm who have not received this message from me, I would be grateful if you forwarded it to them.”

Now, if the member wonders what pressure looks like, if the member wonders what a blacklist looks like, if the member wonders what intimidation looks like in relation to occupational therapists, I think he has his answer.

The occupational therapists who are working with government in good faith to bring their expertise, to draft regulations, are being threatened with a blacklist distributed across the province, to all plaintiff-side personal injury firms, coordinated by the Trial Lawyers Association.

The Chair: Member, just for guidance. We are on section 5, talking about definitions. Perhaps the comments the member is making goes to the merit of the bill, which we would have the opportunity to talk about later on — lots of opportunities.

If we could just focus on definitions, and we’ll get them out of the way.

M. Lee: Only to make one quick comment in response. It appears, based on what the Attorney General has read out, that occupational therapists are under threat and intimidation by both sides of this.

This is what we heard from occupational therapists in their letters. That’s what I just read out. But the Attorney General has read a letter out in this manner, and that’s what we hear.

With that, Mr. Chair, I would just suggest that we can move forward with the review and voting on section 5 to section 31, because our next questions will be on section 32 of this bill.

[3:10 p.m.]

Hon. D. Eby: For the record, what a shameful display of bothsidesism. Are you kidding? On one side, somebody thinks that maybe ICBC might be potentially…. Who knows? They feel that way. And I read out a letter that literally creates a blacklist for distribution across the province? There is no equivalent. There is no equivalent.

The member’s shameful and unabashed apology for this email — which, I understand, he is defending as being equivalent….

Interjection.

Hon. D. Eby: Oh, he’s not defending it?

Interjections.

The Chair: Members.

Hon. D. Eby: Well, then, perhaps he should stand up, on the record, and say that it’s unacceptable for people to be intimidated out of working with government, that it is unacceptable to create a blacklist of people who assist government in public policy. That is a trend, that is a precedent that will be a problem not just for this bill but for any attempt at reform, if they are allowed to get away with this.

I want the member to stand up, on the record, and say it’s unacceptable. It’s not the same as someone feeling that potentially something could happen. That a letter that literally creates a blacklist and attempts to deprive OTs of their living because they provided their expertise to government in drafting public policy — I want him to stand up and say that is wrong and that he does not accept it.

M. Lee: Clearly, Mr. Chair, any British Columbian or representative organization, professional or otherwise, that is faced with intimidation or threat…. It’s unacceptable. We want to have good policy discussion. Nor is it acceptable that we are set behind a secret non-disclosure agreement right now. We have cases where OTs are writing letters to my colleagues and myself saying that they’re under threat and intimidation from ICBC. Whether it’s coming from the Trial Lawyers Association of British Columbia or ICBC itself, it’s not acceptable.

Hon. D. Eby: Chair, it is not the same. It is not the same thing to say, “Hey, if you’re going to assist us in drafting these regulations, we need two things. We need you to not talk about what is secret right now but will be public” — namely, the regulations, because someone could derive financial benefit from that. The second thing that’s in these NDAs is: “You can talk about anything that’s public. Anything you want to talk about that’s public — go ahead; knock yourself out.” So when the regs are public, people can come out, and OTs can come out, and they can talk about those regulations if they want to — no problem.

If the member doesn’t see the difference between that and creating a blacklist of OTs who cooperate with government — and using that to deprive them of earning a living, to threaten their livelihood — then the member is so embedded in the current system, so willing to endorse its excesses that he would sign off on depriving people, who are deserving of benefits, from those benefits. He would sign off on saying that that is the equivalent of creating a blacklist. It’s shameful, hon. Chair. Just shameful.

Sections 5 to 16 inclusive approved.

On section 17.

Hon. D. Eby: I move the amendment to section 17 that’s in the possession of the Clerk.

[SECTION 17, by deleting the text shown as struck out and adding the underlined text as shown:

17 Section 45.1 is amended

(a) by repealing subsection (1) (a) and substituting the following:

(a) respecting the amount payable as benefits for the provision of health care by a health care practitioner to an insured person, including, without limitation, regulations adopting a payment schedule under section 26 of the Medicare Protection Act; , and

(a.1) in subsection (3) by striking out “subsection (1) (a) (ii)” and substituting “subsection (1) (a)”, and

(b) by repealing subsections (4) to (8).]

On the amendment.

Hon. D. Eby: Section 45.1 of the Insurance (Vehicle) Act sets out requirements for periodic reviews of benefits amounts. The amendment is a technical housekeeping amendment.

Amendment approved.

Section 17 as amended approved.

Sections 18 to 20 inclusive approved.

On section 21.

[3:15 p.m. - 3:20 p.m.]

Hon. D. Eby: I move the amendment to section 21 standing in my name in the orders of the day.

[SECTION 21, in the proposed section 72 (t), by adding the underlined text as shown:

(t) respecting exceptions for the purposes of section 61 (1) (a) or (b).]

On the amendment.

Hon. D. Eby: This amendment amends subsection 72(t) by adding a reference to subsection 61(1)(b) so that the regulations may be made in relation to both subsection 61(1)(a) and subsection 61(1)(b).

Section 61 of the Insurance Vehicle Act sets out the rules and restrictions on optional auto insurance. Subsection 61(1)(a) relates to optional insurance that extends coverage that is specified in a certificate or policy. Subsection 61(1)(b) relates to optional insurance that extends coverage that is provided under part 10 of the act.

The amendment authorizes the Lieutenant-Governor-in-Council to allow optional insurance contracts that extend coverage under part 10 of the act, as well as extending coverage specified in a certificate on different terms and conditions and set limits and restrictions on those different terms and conditions.

Amendment approved.

Section 21 as amended approved.

Sections 22 to 27 inclusive approved.

Hon. D. Eby: I move the amendment to section 27.1 standing in my name in the orders of the day.

[SECTION 27.1, by adding the following section:

27.1 Section 93.1 (5) is amended by striking out “as defined in section 83 (1) of this Act,”.]

On the amendment.

Hon. D. Eby: The amendment amends subsection 93.1(5) of the Insurance Vehicle Act to strike out “as defined in section 83 (1) of this Act.”

Section 93.1 sets out collection remedies available to ICBC if money is owed to ICBC or the government. Subsection 93.1(5) provides that ICBC may deduct the amount of an indebtedness from any insurance money payable by the corporation to the debtor. However, there cannot be any deduction from insurance money that is benefits under the act.

[3:25 p.m.]

With the revised definition of “benefits” in section 1 of the act, which includes both benefits payable under part 1 and all amounts payable under part 10 of the act, and the amendments to the references to “benefits” in section 83 of the act, which does not include part 10 of the act, the current reference in subsection 93.1(5) to section 83 is no longer required or appropriate.

Amendment approved.

Section 27.1 approved.

Sections 28 to 30 inclusive approved.

On section 31.

Hon. D. Eby: I move the amendment to section 31 standing in my name on the orders of the day.

[SECTION 31, by deleting the proposed section 111 and substituting the following:

Consequences of offer and payment of pre-litigation payment

111 An offer under section 108 or a pre-litigation payment is not an acknowledgment or admission of liability, including for the purposes of the Limitation Act, and does not prejudice the rights of the insured or the corporation.]

This amendment deletes subsection 111(2) of the Insurance (Vehicle) Act, which is added by section 31 of the bill. Subsection (2) is deleted because it’s unnecessary to state that lawyers cannot claim a contingency over an amount that they did not assist their client in obtaining. It would be unethical for a lawyer to claim a contingency over something that happened before they represented the client.

Amendment approved.

Section 31 as amended approved.

On section 32.

Hon. D. Eby: I move the amendment to section 32 standing in my name on the orders of the day.

[SECTION 32, in the proposed section 116 (1), by adding the underlined text as shown:

(1) In this section:

“garage service operator” has the prescribed meaning;

“out-of-province owner” means a person who has ownership of a vehicle in a jurisdiction outside British Columbia in accordance with the law of that jurisdiction;

“voluntary occupant” means a person who is a voluntary operator of, or a voluntary passenger in or on, a vehicle that the person knew or ought to have known was being operated without the consent of the owner, the out-of-province owner or, in the case of a leased motor vehicle, the lessee.]

The amendment amends section 116 of the Insurance (Vehicle) Act, which is being added in section 32 of Bill 11 to add a definition of “out-of-province owner” and amend the definition of “voluntary occupant” to add a reference to an out-of-province owner.

Under subsection 116(5), voluntary occupants of vehicles being operated without the consent of the owner cannot sue for damages. With this amendment, the ban on lawsuits applies regardless of whether the vehicle is a B.C. vehicle or an out-of-province vehicle.

Amendment approved.

On section 32 as amended.

M. Lee: Just as a point of clarification on the other amendments to section 32 that the Attorney General had on the order paper. Will those be dealt with or after we have further discussion about section 32?

Hon. D. Eby: There are some remaining proposed amendments standing in my name on the orders of the day. I move the remaining amendments to section 32 standing in my name on the orders of the day.

[SECTION 32, in the proposed section 153 (2), by deleting the text shown as struck out and adding the underlined text as shown:

(2) The corporation must calculate and determine the caregiver benefitamount of the reimbursement to which the insured is entitled under subsection (1) in accordance with the regulations.]

[SECTION 32, in the proposed section 170, by deleting the definition of “licensed vehicle” and substituting the following:

“licensed vehicle” means a vehicle

(a) that is not any of the following:

(i) a non-standard motor vehicle;

(ii) an excluded vehicle;

(iii) a vehicle in a class of prescribed class of vehicles, and

(b) that is one of the following:

(i) a vehicle registered and licensed under the Motor Vehicle Act or the Commercial Transport Act;

(ii) a vehicle for which a permit has been issued under the Motor Vehicle Act or the Commercial Transport Act;

(iii) a vehicle registered in a jurisdiction in the area described in section 118 of this Act for which licensing requirements of the jurisdiction in which the vehicle is registered are ful­filled; .]

[SECTION 32, in the proposed section 172 (2), by adding the underlined text as shown:

(2) Subsection (1) does not apply respecting actions to be brought or proceedings to be commenced or maintained against

(a) persons who, at the time of the accident, are not owners, lessees named in an owner’s certificate, occupants or operators of included vehicles involved in the accident, and

(b) persons in a prescribed class of persons by persons in a prescribed class of persons.]

[SECTION 32, in the proposed section 173, by adding the underlined text as shown:

No actions or proceedings for vehicle damage — accident off-highway

173 (1) In this section, “licensed person”, in relation to a licensed vehicle, means

(a) an owner, a lessee named in an owner’s certificate, an occupant or an operator, or

(b) a person in a prescribed class of persons.

(2) Despite any other law or enactment,

(a) a licensed person, other than a licensed person in a prescribed class of licensed persons, has no right of action and must not commence or maintain proceedings against another licensed person respecting vehicle damage sustained to a licensed vehicle in an accident that

(i) occurred off-highway, and

(ii) involved at least 2 licensed vehicles;

(b) no action or proceeding may be commenced or maintained by a licensed person, other than a licensed person in a prescribed class of licensed persons, against another licensed person respecting vehicle damage sustained to the licensed vehicle in an accident that

(i) occurred off-highway, and

(ii) involved at least 2 licensed vehicles.

(3) Despite the Negligence Act, in an action to which subsection (2) of this section does not apply respecting an accident that

(a) occurred off-highway, and

(b) involved at least 2 licensed vehicles,

if 2 or more persons are responsible for the vehicle damage arising out of the accident, they are liable for any damages awarded for that vehicle damage in the degree to which they are respectively responsible and are not liable to make contribution to and indemnify each other respecting that liability or any payment made in relation to it.]

[SECTION 32, in the proposed section 174 (1) and (4), by deleting the text shown as struck out and adding the underlined text as shown:

(1) In this section, “eligible vehicle” means

(a) a licensed vehicle with respect to which coverage is, under this Part, provided by a certificate,

(b) a non-standard motor vehicle

(i) with respect to which

(A) a licence or permit has been issued under the Motor Vehicle Act or the Commercial Transport Act, and

(B) coverage is provided by a certificate, and

(ii) that was involved in an accident that occurred on the portion of the highway on which the vehicle is authorized to be operated,

(c) an excluded vehicle

(i) with respect to which

(A) a permit has been issued under the Motor Vehicle Act or the Commercial Transport Act, and

(B) coverage is provided by a certificate, and

(ii) that was involved in an accident that occurred on the portion of the highway on which the vehicle is authorized to be operated, and

(d) a vehicle with respect to which coverage is provided by a certificate and that is in a prescribed class of vehicles.

but does not include a vehicle in a prescribed class of vehicles.

(4) The total value of indemnification under subsection (3) must be reduced by the extent to which, expressed as a percentage,

(a) the insured is responsible for the accident, andthe owner and the operator of the insured’s eligible vehicle and a person in a prescribed class of persons is responsible for the accident, and

(b) another person whose name is not ascertainable is responsible for the accident.]

[SECTION 32, in the proposed section 175 (4), by deleting the text shown as struck out and adding the underlined text as shown:

(4) The total value of indemnification under subsection (3) must be reduced by the extent to which, expressed as a percentage,

(a) the insured is responsible for the accident, andthe owner and the operator of the insured’s eligible vehicle and a person in a prescribed class of persons is responsible for the accident, and

(b) another person whose name is not ascertainable is responsible for the accident.]

[SECTION 32, in the proposed section 178, by deleting the text shown as struck out and adding the underlined text as shown:

Recovery

178 (1) In this section:

“out-of-province owner” means a person who has ownership of a motor vehicle in a jurisdiction outside British Columbia in accordance with the law of that jurisdiction;

“owner” includes an out-of-province owner.

(2) Subject to the regulations and subsection (3), the corporation may recover indemnification paid to an insured under this Part in relation to an accident on a highway,

(a) in relation to an accident on a highway or off-highway, from an owner of a vehicle described in subsection (4) except in the prescribed circumstances,

(b) in relation to an accident on a highway, from an operator or occupant of a vehicle described in subsection (4) if

(i) the operator or occupant knew or ought to have known that the vehicle is not a licensed vehicle, or

(ii) the accident occurs on the portion of the highway on which the vehicle is not authorized to be operated, and

(c) in relation to an accident on a highway or off-highway, from a person in a prescribed class of persons in relation to a vehicle described in subsection (4).

(3) Recovery under subsection (2) is limited to the extent to which, expressed as a percentage and applied to the amount paid under this Part, the applicable person referred to in subsection (2) is responsible for the accident.

(4) The following vehicles are vehicles for the purposes of subsection (2):

(a) a vehicle that is none of the following:

(i) an excluded vehicle, other than a vehicle described in paragraph (c) of this subsection;

(ii) a licensed vehicle;

(iii) a non-standard motor vehicle, other than a vehicle described in paragraph (b) of this subsection;

(b) a non-standard motor vehicle

(i) with respect to which

(A) a licence or permit has been issued under the Motor Vehicle Act or the Commercial Transport Act, and

(B) coverage is provided by a certificate, and

(ii) that is involved in an accident that occurs on the portion of the highway on which the vehicle is not authorized to be operated;

(c) an excluded vehicle

(i) with respect to which

(A) a permit has been issued under the Motor Vehicle Act or the Commercial Transport Act, and

(B) coverage is provided by a certificate, and

(ii) that is involved in an accident that occurs on the portion of the highway on which the vehicle is not authorized to be operated;

(d) a vehicle in a prescribed class of vehicles.

(5) AnSubject to the regulations, an insurer that

(a) is authorized to transact vehicle insurance in Canada or the United States of America, and

(b) has insured a vehicle for which the licensing requirements of the jurisdiction in which the vehicle is registered are fulfilled

may recover insurance money paid under a contract of insurance as a result of an accident from a person referred to in subsection (2), but only to the extent that the corporation could recover under subsection (2) had the money been paid by the corporation under section 174 or 175.

(6) AnSubject to the regulations, an owner of a vehicle described in section 1.01 may recover damage or losses with respect to vehicle damage as a result of an accident from a person referred to in subsection (2) of this section, but only to the extent that the corporation could recover under subsection (2) of this section had the money been paid by the corporation under section 174 or 175.]

[SECTION 32, in the proposed section 180 (2), by deleting the text shown as struck out and adding the underlined text as shown:

(2) Without limiting subsection (1), the Lieutenant Governor in Council may make regulations under this Part as follows:

(a) establishing requirements and procedures respecting disputes of claimants and insureds in relation to a determination or decision made by the corporation under this Part;

(b) respecting an evaluation process for settling disputes between an insurerthe corporation and an insured about the nature and extent of repairs required for a vehicle, the replacement of a vehicle or the amount payable in respect of direct loss of or damage to the vehicle and how the costs of the evaluation are paid;

(c) exempting prescribed disputes or disputes in prescribed circumstances from the evaluation process;

(d) providing that prescribed disputes may or must be submitted to arbitration, and governing the rights and obligations of the arbitrator and a party to the arbitration;

(e) respecting the priority of claims under the plan or optional insurance contracts;

(f) respecting indemnification provided under section 174 (3) or 175 (3), including, without limitation, regulations respecting how and in what form indemnification may be provided;

(g) respecting indemnification that was not paid or that was reduced, suspended or cancelled in prescribed circumstances under section 177 (1) (f) if the circumstances change, including determining if interest is payable, and if so, the amount of interest and the manner of payment;

(h) if an amount is paid under a regulation made under paragraph (g) and the circumstances revert to the prescribed circumstances in which insurance money should not have been paid or should have been reduced, suspended or cancelled, respecting the repayment of the insurance money paid, including the manner of repayment;

(i) respecting claims under this Part, including, without limitation, regulations authorizing the corporation to establish requirements respecting

(i) the form and manner of making claims,

(ii) the time by which claims must be made,

(iii) the circumstances in which the corporation may extend a time established for making a claim, and

(iv) procedures to be followed by claimants or insureds respecting a determination or decision made by the corporation under this Part;

(j) establishing requirements respecting how an authorization made under a regulation made under paragraph (f) is to be carried out.]

On the amendments.

[3:30 p.m.]

Hon. D. Eby: These amendments amend section 153 of the Insurance (Vehicle) Act being added by section 32 of Bill 11 to strike out “caregiver benefit” and replace it with “amount of the reimbursement.” This corrects a drafting error.

Section 152 of the Insurance (Vehicle) Act sets out the caregiver benefit, and section 153 of the Insurance (Vehicle) Act sets out the entitlement of those individuals receiving an income replacement benefit to be reimbursed for care expenses if an individual is unable, because of their bodily injury, to provide care.

It also amends section 170 of the Insurance (Vehicle) Act, being added by section 32 of the bill, to replace the definition of “licensed vehicle.” The new definition of “licensed vehicle” adds the authority to prescribe a vehicle in a prescribed class of vehicles as not licensed vehicles for the purposes of part 11 of the Insurance (Vehicle) Act. It is anticipated the vehicles which will be prescribed are the same vehicles currently excluded from basic insurance by regulations, such as aircraft, except when the aircraft are being drawn as a trailer on a highway.

[S. Gibson in the chair.]

Vehicles excluded from the definition of “licensed vehicle” are not subject to the ban on lawsuits for vehicle damage and not eligible for basic vehicle damage coverage.

Finally, these amendments amend section 172(2)(b) of the Insurance (Vehicle) Act, being added by section 32 of Bill 11, to add “by persons in a prescribed class of persons.” Section 172 sets out the ban on lawsuits with respect to vehicle damage for accidents occurring on a highway. Subsection 2 sets out the exceptions to that ban.

With the amendment, there will be sufficient authority for the anticipated regulation, which will allow, for example, lawsuits between owners of vehicles in specific circumstances, such as where a vehicle and trailers with different ownership are being operated in combination, or lawsuits by owners against a thief.

I said finally, but I’m going to keep going. The amendments also amend section 173 of the Insurance (Vehicle) Act, being added by section 32 of Bill 11, to add in subsections 2(a) and (b), “other than a licensed person in a prescribed class of licensed persons.” Section 173 sets out the ban on lawsuits with respect to vehicle damage for accidents occurring off-highway. Subsection 2 sets out the exceptions to that ban.

With the amendment, there will be sufficient authority for the anticipated regulation, which will allow, for example, lawsuits between owners of licensed vehicles in specific circumstances, such as where vehicles and trailers with different ownership are being operated in combination off-highway, or lawsuits by owners against a thief.

They amend section 174 of the Insurance (Vehicle) Act, being added by section 32 of Bill 11, to add after section 174(1)(d) “but does not include a vehicle in a prescribed class of vehicles” and replace section 174(4)(a) with “the owner and the operator of the insured’s eligible vehicle and a person in a prescribed class of persons is responsible for the accident, and.”

Section 174(1) sets out the definition of “eligible vehicle” for basic vehicle damage coverage for accidents which occur on a highway. The amendment provides authority for the regulation to remove vehicles from the definition. Vehicles removed from the definition are not subject to the ban on lawsuits for vehicle damage on a highway and are not eligible for basic vehicle damage coverage. As noted with sections 172 and 173, these will be vehicles currently excluded from basic insurance.

Section 174(4) sets out the reductions from basic vehicle damage coverage when the listed persons are responsible for the accident. Basic vehicle damage coverage is a fault-dependent product. Generally, this maintains the status quo.

It also replaces section 175(4)(a) with “the owner and operator of the insured’s eligible vehicle and a person in a prescribed class of persons is responsible for the accident, and.” Section 175(4) sets out the reductions from basic vehicle damage coverage when the list of persons are responsible for the accident occurring off-highway. Basic vehicle damage coverage is a fault-dependent product. Generally, this maintains the status quo.

In the definition of “out-of-province owner,” the amendments strike out “motor.” In subsection 2, striking out “in relation to an accident on a highway” before paragraph (a).

In paragraph (2)(a), adding “in relation to an accident on a highway or off-highway” and adding “except.” In paragraph (2)(b), adding “in relation to an accident on a highway.” In paragraph (2)(c), adding “in relation to an accident on a highway or off-highway.” In subsections (5) and (6), adding “Subject to the regulations” and “or 175.”

[3:35 p.m.]

Section 178 of the Insurance (Vehicle) Act sets out the statutory right of recovery with respect to basic legal damage coverage. The amendments ensure that the provision and regulations under the provision work as intended.

The amendments also amend section 180 of the Insurance (Vehicle) Act being added by section 32 of Bill 11.

Section 180 of the Insurance (Vehicle) Act sets out the authority to make regulations for the purposes of part 10, basic vehicle damage coverage. The amendments ensure regulations can be made as intended.

The Chair: One moment, please.

Thank you, Members. Just before we proceed, are any members interested in speaking to these amendments?

The Attorney General has moved eight amendments — we’ll enumerate those — to section 32. All amendments are provided on the order paper. The amendments to section 32 are as follows. We’ve got 170, 172(2), 173, 174(1) and (4) — getting complicated, Members — 175(4), 178 and 180(2).

I’m joining this in progress, Members. Thank you for your understanding.

My question now is: should these amendments pass? We’re going to vote on that now.

Hon. D. Eby: I think maybe section 116 was missed in the recitation of sections that were amended, or did we pass that one first?

The Chair: We’ll check that. Appreciate that. There’s a total of nine here.

Thank you, Attorney General, for alerting us to that. That’s section 116(1). That, I think, adds the one that you would like, sir.

Now we’re going to vote on all of these.

Amendments approved.

On section 32 as amended.

M. Lee: I wanted to turn to section 32 of this bill and specifically the definition of “catastrophic injury” as set out with the prescribed meaning.

[3:40 p.m.]

Can I ask the Attorney General what will be included in this definition?

Hon. D. Eby: First of all, I want to correct a response that I gave to the member earlier about who was blacklisting occupational therapists. I said that it was the Trial Lawyers Advisory Group, which was a subsection of the Trial Lawyers Association. That is not correct. It is a separate law firm that has that name. It is very similar, but it’s not otherwise affiliated. I mean, the firm may have members who are members of the Trial Lawyers.

The Trial Lawyers Association of B.C. has not sent letters. I want to be very clear about that on the record. Other people did but not the Trial Lawyers Association.

With respect to the member’s question, which is an important one, there are degrees of an in-depth answer that I could provide. The most in-depth answer would be to read out schedule 4 of the Manitoba act, which details, in incredibly technical medical terminology, the types of injuries that are considered catastrophic. This is the model for our regulation.

To give an idea of what is intended here in more lay terminology…. My apologies to those who are more versed in these areas. The Manitoba definition is a five-page definition in their schedule. Our intention is to include things like amputations, loss of vision, alteration of brain function, severe burns, loss of range of motion in various circumstances, and so on.

Obviously, I’m not talking about quadriplegia. I’m not taking the most extreme. I’m trying to bring it more towards the end of things that the member may be asking. How far does it go in terms of the other end of the spectrum? So up to and including loss of range of motion in some circumstances.

M. Lee: I appreciate the reference point to the way that it’s defined under the Manitoba act as schedule 4. Is there any contemplated differences between the definition that will be prescribed by regulation here in B.C., under this bill, versus that definition in Manitoba?

[3:45 p.m.]

Hon. D. Eby: At this point, we’re not contemplating changes from the Manitoba statute. We are consulting with medical experts to make sure that it’s appropriate for the B.C. context.

M. Lee: In terms of spelling out the definition by way of regulation, what’s expected to change by virtue of doing it that way?

Hon. D. Eby: The engagement with Doctors of B.C., in particular but not exclusively, continues on this. It’s a highly technical list. I understand that one of the benefits of having it in the regulation is that if there’s another area that needs to be added to ensure that people receive appropriate benefits for a catastrophic injury, it’s much easier to do that through regulation.

One of the things that I have underlined for the member, going forward, is that we’re intending to have engagement processes with groups like Doctors of B.C., occupational therapists and others throughout the implementation and following implementation of this so that we can make sure we’ve got it right. We don’t expect to….

I mean, I just read out five or six amendments to section 32. This is an evolving piece of work. It will require amendment, we expect, to make sure that we’ve got it right for British Columbia. So having it in regulation facilitates us making sure that we don’t leave anyone behind.

M. Lee: I appreciate the Attorney General acknowledging the nature of the number of amendments that were tabled here in this House after Bill 11 was introduced. I think that’s indicative of the complexity of the legislation that government is presenting here.

The Attorney General, in response — thank you for that — indicates that there may be additional items included in the definition of a catastrophic injury. Presumably, that will only lead to additional benefits being extended to those who have different types of catastrophic injury, as it might be defined. I appreciate that the Attorney General has indicated it that way.

[3:50 p.m.]

Of course, as we’ve talked about at length in this chamber, there has been recent precedent for how the definition and the process around definition is set in regulation and can go the other way. That is where…. Well, actually, it’s the same way. It was an addition to minor injury, when brain injury and concussion were added to that definition, even though the government, when they passed the bill in the House, didn’t have that included.

I want to just read into the record a letter that I have been provided by the Cridge Centre for the Family manager of brain injury services, the Victoria Brain Injury Society and the Cowichan Brain Injury Society. It’s a joint letter. One of the members there has been in the media recently to talk about, again, the challenge with the inclusion of brain injury and concussion in the minor injury definition.

I only raise this to illustrate the challenge with definitions by way of regulation when it is a critical definition in this bill, as the member for Surrey South had talked about previously in her comments in committee and as it will come later on in this discussion.

The statement is this:

“We were first told, in February 2018, that ICBC could balance its books by moving minor injury claims out of the court system. Despite repeated assurances to the contrary, by November 2018, we learned that ICBC had lobbied government to have concussions included in its definition of a minor injury.

“British Columbia is now the only province in Canada with an injury compensation law that presumes a concussion is minor unless and until the victim can show it to be otherwise. How is the brain injury survivor expected to prove the severity and extent of their condition?

“Under the current minor injury approach, disagreements between ICBC and the victims are now settled before the civil resolution tribunal. The CRT has been promoted as a streamlined option for benefit disputes to be resolved online by the parties themselves. The advantages touted by the CRT are cold comfort to brain injury survivors who are now expected to square off against experienced insurance professionals at ICBC and prove their need for ongoing treatment and compensation, largely on their own.

“How effective or persuasive would you be in a Zoom meeting if you were struggling with memory loss, word-finding difficulties and impulse control problems — three of the most common symptoms our clients confront as a result of their prior injuries?”

I read that second paragraph just to illustrate further the challenge for those who are working through the system when the definition is expanded. That is the previous changes, both the changes to adopt a minor injury cap with the definition that was subsequently expanded by way of regulation and, of course, the civil resolution tribunal, which we will come to, in terms of how you hold ICBC accountable for the decisions that they make at the adjuster level, at least in theory.

The challenge, of course, is that when we are talking about catastrophic injury, individuals…. The 400 or 500 British Columbians that suffer from those severe injuries every year are even more challenged to deal with ICBC. So when we talk about the definition….

I would ask the Attorney General: has there been…? What level of consultation has been made with those, for example, in the brain injury community?

[3:55 p.m.]

Hon. D. Eby: My staff advise that they have received the full list of groups we consulted with. On that list are eight groups that are specifically engaged in brain injury rehabilitation and support. They are included on the list that staff will be sending into the chamber very shortly, to the member. And just so that I can be a little bit more explicit about why I’d prefer to do it that way this time, it’s in relation to my concern about what’s happening to the occupational therapists.

With respect to Cridge, I have seen their correspondence. They wrote to me. I certainly understand their perspective in terms of a lack of trust of ICBC, given what they have seen, trying to support people in the current system. I am happy to meet with Cridge and with the other organizations to do what I can to show them what safeguards we’ve put in place and what we’re going to be doing around cultural transformation, because I think the system will be better if we receive their feedback about how best to support their members. But I wouldn’t want to leave members with the impression that we had not engaged with groups that support people with brain injuries.

I will note for the record…. I need to do this every time, because the member continually repeats that brain injuries and concussions are included as minor injuries — only those concussions that resolve within 16 weeks, in terms of a person completing the duties of ordinary life and the obligations of ordinary life. Those that continue on beyond six weeks are not minor injuries.

I do understand the member’s position that people who have a concussion that resolves within 16 weeks should go to B.C. Supreme Court and have access to unlimited pain and suffering awards. That was not our intention with the minor injury definition. So through engagement, we were able to get feedback that for minor…. And I do want to note with caution, because the terminology of the statute, rather than my own feeling about the impact of a concussion injury….

For a more minor concussion injury, relatively speaking, one that resolves within 16 weeks, it should not be going to B.C. Supreme Court, with all of the attendant expenses, nor should it entitle a person to unlimited pain and suffering awards. It is appropriately included within the scope of minor injury.

It looks like I’ve received the list. I’ll send the list over to both my friends on the other side who are working on this file, Richmond-Queensborough and Vancouver-Langara.

M. Lee: Thank you for the list as well.

[4:00 p.m.]

I want to, just for the interest of time here, move on to section 116(2)(f) and ask the Attorney General why the threshold is so high at criminal convictions before you can sue an at-fault driver?

Hon. D. Eby: Under our current system, if you are negligent, if you are speeding, you are still covered by your insurance. Certainly, if the conversation is about personal responsibility and making sure that we’re holding people responsible for their driving choices, there is not a significant shift between the new approach and the old one. I think it is a surprise to people when a clearly at-fault driver — distracted driver, negligent driver, reckless driver — shows up in court with an ICBC-paid-for lawyer, and the injured person is defending themselves out of their settlement awards. That is how our current system works. It provides lawyers for at-fault drivers, because that’s what they’re buying their insurance coverage for.

Under the new system, people who…. The system mirrors the existing system to some extent, to a point, which is where you are convicted of a criminal offence, and it is actually an expansion, in some ways, depending on the offence. But regardless, if you are convicted of a criminal offence, you can be sued personally, and the reason for that inclusion is because one of the major critiques of no-fault systems is that they don’t assign responsibility.

We weren’t going to have a system that did that in British Columbia. We were going to have a system that did assign responsibility in two ways. For up to a criminal offence, your insurance premiums will increase, in some cases dramatically, depending on your conduct while you’re driving, and you will be paying a significant amount of additional money. If you’re not at fault in a collision, your insurance premiums will not increase. So there’s accountability up to that point.

For a criminal conviction, there’s an extra level of culpability. A court has found you, beyond a reasonable doubt, as the member said, to have engaged in criminal conduct behind the wheel. As a result of that special culpability, we feel that there should be special personal responsibility, namely that you can be personally sued and brought through the tort system so that someone can recover assets from you in an attempt to offset some of their experience that they’ve had to endure because of your criminal decision.

[4:05 p.m.]

I hope that helps the member understand some of the philosophy behind the approach where, up until the point of criminal conviction, we use things like fines and fees through the insurance system and outside the insurance system, and the increase in insurance rates, and then criminal culpability changes the game because it is so singular and different. That results in the law suit being able to go ahead.

M. Lee: I want to just go back over the Attorney General’s response. I appreciate that he is referring to no-fault and other no-fault systems — Manitoba, Saskatchewan — and what that might be and what it might be here in B.C. under this bill and how that might be a difference.

Of course, I’m focused on our current system. By virtue of section 115 of this bill — in terms of the amendment under section 32 to amend section 115 of the act — “a person has no right of action and must not commence or maintain proceedings respecting bodily injury caused by a vehicle arising out of an accident.” That means, if you’re in a motor vehicle accident, you can’t bring forward an action except in certain cases.

That’s where, under section 116(2), “section 115 does not apply to an action or proceeding for non-pecuniary damages and punitive, exemplary or other similar non-compensatory damages” — in sub (f), where that individual is found as a result in the person’s conviction of a prescribed Criminal Code offence.

So today, as I understand it, ICBC has an entire department whose function is to collect money from people who have breached their insurance because they were driving drunk. One might say that it makes good policy sense in the sense that it allows the innocent and injured person a way to ensure their injuries are fully and fairly compensated. It penalizes drunk drivers with the risk that if they are responsible for a crash, ICBC can come after them personally to reimburse any amount paid out to the injured person.

Of course, there will be a difference under the new system in the sense that the at-fault driver who is found to be under the influence — or drunk — causing the accident, it will be a challenge to come after that individual. First, if the individual is not found to be criminally convicted, and secondly, even if the person is criminally convicted, the collection. So this is a significant change where this government is asking British Columbians to give up their legal rights.

I understand that premiums may increase for an at-fault driver. But the other aspect of this bill that government points to is this very high threshold. A threshold that is, in the first case, very high — hard to prove and get a conviction, a criminal conviction — and secondly, hard to collect on. So to the Attorney General, how effective and well-utilized does the Attorney General expect this provision to be?

[4:10 p.m.]

Hon. D. Eby: I’ll refer the member to sections 121 and 168, which enable ICBC to reduce benefits in some circumstances — which could, and is anticipated to, include criminal convictions — as well as recover the cost of benefits from an at-fault driver in some circumstances. The policy work on that continues. But these are largely targeted at the criminal side. So the member asked about: “Will ICBC be able to recover the costs from people who are driving criminally?” The answer is yes. The amendments allow that under sections 121 and 168.

I think it’s important that the member recognizes that it’s very challenging to compare the two systems. Actually, it’s not totally clear, to be honest. But I think he seems to be a bit of a fan of the current system. But regardless, the current system is one in which you get hit by someone who is incredibly negligent, and you suddenly find yourself in court facing a lawyer who is representing the interests of that person, while you have to pay for your own lawyer out of your pocket when all you did was sit in a line of traffic on Highway 1 and get rear-ended by someone who was not paying attention.

That’s really difficult for people to wrap their heads around. I read a letter to the member to kind of illustrate that challenge. But even worse is when that person doesn’t have adequate insurance to cover the injuries. Although you can sue a person in more circumstances under the current system, it really doesn’t matter if you can sue someone if there’s nothing to sue them for or if there’s just insufficient money to recover from them, as the letter writer discovered, much to her horror and her family’s horror.

Under our new system, you are exchanging the right to sue the at-fault driver, who you hope has enough insurance coverage to cover your family. You’re exchanging that, in most cases, for dramatically increased benefits that far exceed the average amount of insurance carried by British Columbians, more than $7 million, as well as lower rates if you’re not in a collision. It’s a trade. It’s not zero cost. It’s not that you get everything in both systems or that the new system gives you everything you had in the old system. It’s not the case at all. It is a trade.

This is the core of the savings in the system: removing legal costs from the system and repurposing them to deliver savings to drivers and deliver better benefits to those who are injured in collisions so that nobody who has responsibility for this portfolio ever has to read another letter like the one that came in on May 22. I think that’s an okay trade.

But it’s only an okay trade up to a point. That point is where someone is conducting themselves in a criminal manner. That is the reason for carving out this area. It is correct — the member’s question. It would not be right that someone who was conducting themselves criminally could enjoy full benefits under the system as if they weren’t conducting themselves criminally or that they would imagine themselves immune from recovery in the event that, for whatever reason, an injured driver was unable to bring a lawsuit against them. ICBC has the ability to pursue that from them as well. I hope that addresses some of the member’s concerns.

S. Furstenau: I appreciate coordinating a little bit with the member opposite. I just wanted to ask a few general questions on this section before we got into the more specific sections.

[4:15 p.m.]

Really, following on the minister’s comments just now about the pros and cons and the benefits that are presented in this, it seems to be somewhat recognized that the current system is unsustainable due to these costs and inefficiencies that the minister is speaking about, to some degree.

Could I start with the minister giving us a sense of the projected annual cost savings to ICBC with a move to this model?

Hon. D. Eby: It’s in the ballpark of $1½ billion annually.

S. Furstenau: Following on that, how will these reforms alter the efficiency of ICBC? How much of the premiums will be returned as benefits?

Hon. D. Eby: Comparing among public insurers…. Ernst and Young prepared figures using the latest stats that they had in preparing a 2017 report. So they used 2016, but it is illustrative, I think. Manitoba, under a no-fault system, returned 104 percent of premium dollars to drivers. That number exceeds 100 percent because they had a return on their investments which they were able to return to drivers in different ways. Saskatchewan — 83 percent. And ICBC, 56 percent — a public insurer under the tort system.

We don’t have a final number of where we expect ICBC to be at, but we expect them to be more in the neighbourhood of 83 to 104 percent and less in the neighbourhood of where they are, which is that just better than 50 percent of each dollar that’s taken in, in premiums, is then returned to drivers. That’s what that percentage is. If you took a dollar in premium and gave a dollar to a driver, it’s 100 percent. ICBC was giving 56 cents on the dollar to drivers in 2016.

S. Furstenau: I think one of the challenges that a lot of people feel about this transition is that ICBC hasn’t felt like an ally; it has felt like an adversary for a lot of people.

I think of somebody I know who was riding his bike and was hit by a drunk driver. By the time the police got to that vehicle owner’s home, he was already inside the house, so they couldn’t ascertain that he had actually struck this person. This person felt quite abandoned by the system and didn’t feel like the many, many injuries that he’d suffered really were addressed by the insurance agency or by the person that hit him.

[4:20 p.m.]

I guess that this is more of a…. Does the minister recognize the work to be done to shift people’s thinking about ICBC? What does that work look like for ICBC to do, to gain the trust of the people of British Columbia?

Hon. D. Eby: In the really difficult situation of the current system, when someone is hit by someone who leaves the scene of the accident and the person whom they were hit by was at fault, a person who is injured needs to fulfil certain requirements. In other words, even though it’s a hit-and-run, they need to demonstrate that they weren’t at fault.

Then they need to take steps…. You know, you’re driving around town and you see the sign: “Were you a witness to an accident at this place?” The reason people put up those signs is that they need to take steps to try to identify the person who hit them. It’s only then, when you’ve complied with this section, that you’re able to access limited damages, up to $200,000.

Someone who goes through that process must think and feel like they’ve been victimized again. Under the new system, they will not be required to prove whether they’re at fault or not at fault. They won’t be captured by that need to find that specific person, because the definition of “bodily injury caused by a vehicle” is very broad, and the damages limits are dramatically increased.

To the member’s specific question about how British Columbians think about ICBC, the only way to shift how British Columbians think about ICBC is to give them different experiences with the corporation. So within the statute, we have the new obligation to assist people in accessing the benefits they’re entitled to. We’ve stripped out that obligation, to the at-fault driver, to defend them — that doesn’t exist anymore — but that’s not enough in itself.

Within ICBC itself, they’ll be doing organizational change management work. The people dealing with claims in the new system will be new to the new system and will be trained up in the care-based system, and the people working in the existing system will have lots of work, unfortunately, for the next ten years in that system. There will be a division between the two areas of ICBC.

In addition, if someone is treated unfairly, if they don’t have a positive experience with ICBC, they have a couple of avenues to go through. They have the fairness commissioner, they have the Ombudsperson, and they have the civil resolution tribunal, all of which are structured for people to be able to represent themselves, but none of which require it. People can bring an advocate or a lawyer if they wish.

The only way to shift people’s perspectives of ICBC is to give them a different experience, and the only way that ICBC could potentially ever do that is under a different type of system. We have put the building blocks in place for this.

[4:25 p.m.]

The biggest challenge, I think, of this system — I’ve acknowledged it a number of times; I’ll put it on the record today — is going to be that culture shift at ICBC, as a corporation which for many decades has been in a highly adversarial, litigious process that’s only gotten more so over time. More and more people are represented by lawyers. ICBC represents more and more at-fault drivers with lawyers to respond.

That shift is going to have to be a significant one, and it’s going to have to be monitored very closely. I see it as the biggest risk of the new system and one that will have to be monitored incredibly closely. I thank the member for drawing that cultural concern to my attention, and I assure her that it’s front of mind for me, absolutely.

M. Lee: Just back on subsection 116(2), were there other exceptions to the limit on actions and proceedings considered by government?

Hon. D. Eby: I can advise the member that there are certain situations that are under consideration, although the general inclination is that we will probably not be adding them. I’ll explain why. I’ll give you an example. One example is road maintenance contractors — people who maintain highways and roads. If a road maintenance contractor were negligent, would that be appropriate to exclude from the ban on litigation?

The concern that I have around an expansion like that is the TMJ concern. The TMJ concern is in Alberta, which had a minor-injury limit, like British Columbia. There’s a joint you have in your jaw — I wish I could remember the full name of it — the TMJ. They didn’t include that in the list of minor injuries. Because they didn’t include it in the list of minor injuries, Alberta became the world headquarters, the world capital, for the highest frequency of TMJ injuries.

My concern about adding things like road maintenance contractors is that we will become the jurisdiction with the most litigation around road maintenance contracting, road maintenance conditions, and that this will be a very heavily litigated area and a dramatically expanding area, without providing the benefits of what one expects, typically, from the court system.

[4:30 p.m.]

The full attention of the existing personal-injury bar will be focused on finding negligent road contractors, because that will enable litigation, as it typically existed, to take place, and we’ll see an explosion in lawsuits related to road maintenance. This is my concern.

[R. Chouhan in the chair.]

I’m not decided about it by any stretch, and I’ll have a conversation with colleagues. I’m certainly glad to hear feedback about that. That is the governing concern about adding new areas of exclusion around the lawsuits — that we end with a TMJ problem. The savings from the system that we’re able to turn into better benefits for people and reduced rates come from people not going to court as often. We have to guard that pretty carefully.

So the reason why it’s by regulation is that we understand and believe that there are probably other categories that we missed that should be appropriately excluded. But there’s a counterweight concern, which is: if we add this, does that mean that we’re essentially creating a back door back to the court system, and we’re going to end up spending….? Through British Columbians’ premiums, British Columbians are going to end up spending a huge additional amount to support litigation that we are trying to get away from in the system.

M. Lee: I would just respond by asking, further to that…. That would mean, given the Attorney General’s example…. I appreciate that it is under some consideration. As we see in the development of the regulations, sub (g) in this provision certainly does provide for the ability for other exceptions to be added.

The Attorney General provides an example that government sounds like they’ve had some consideration of to date: road maintenance contractors. A couple points to be made about this. One is that, as we have heard repeatedly by the Attorney General, the model of no-fault that B.C. is looking to adopt is very much modelled after Manitoba and Saskatchewan. No doubt, of course, much of the road maintenance, on their highway system and otherwise, is done under public contract — under government control, in effect. Whereas in British Columbia, most of our provincial highways are constructed and maintained by private contractors. So this is an important distinction that presumably government is looking at.

The TMJ aspect certainly can be looked at in different ways in terms of what that means. You know, that was a consideration as well as to why we’ve had the discussion about brain injury and concussion and why that was included in the minor injury definition. It adds to further inclusion, and that’s a question in terms of how government will do this complex insurance framework by way of regulation.

But in terms of this area, this would mean, of course, that the province and taxpayers of B.C. would be responsible for funding any losses arising from negligent actions of private road maintenance companies. So to the Attorney General, has there been a consideration of the cost impact of that and not including road maintenance companies and contractors as part of this exception list?

Hon. D. Eby: I wonder if the member could just clarify. The cost implications to ICBC, the cost implications to government or the cost implications to the contractors bidding on road contracts for British Columbia?

M. Lee: The cost implications to ICBC and the government.

[4:35 p.m.]

Hon. D. Eby: I don’t have any numbers for the member. There hasn’t been any financial modelling, but there’s certainly been some thought put into what the impacts could be. The first is that if you’re a contractor who is bidding on a maintenance contract or a construction company bidding on a construction contract for a road, you will have to price into your bid to British Columbia the certainty that you’ll be sued. I say certainty because roads in British Columbia…. There are going to be accidents on them, and if there is an avenue for suing a construction company or a road maintenance company, then they’re going to be sued.

What the most likely outcome of that would be is a request of government — that government indemnify the maintenance contractor or the construction company or that the bid is dramatically inflated, as a result, to cover the cost of future lawsuits and the obligation to defend the company against litigation. That is some of the consideration that goes into something like this.

On the other side of the ledger are the benefits of the tort system, which I certainly acknowledge do and can exist, which is a salutary effect, which encourages them to build the roads to the appropriate standards and avoid negligence and to maintain roads to appropriate standards and avoid negligence.

There are, however, remedies that do exist to obtain those salutary effects of the tort system without necessarily increasing costs for British Columbians or taxpayers. Those include the ability of the Ministry of Transportation to sue for breach of contract, for example. The ability to do that creates the possibility of recovery from a negligent contractor and should in itself be sufficient salutary pressure to encourage them to conduct themselves in a responsible manner.

These are not easy questions. I don’t pretend they are. But I do note that there are a number of categories where we have permitted lawsuits to go ahead, recognizing that the benefits of tort law outweigh the cost to the whole system in allowing litigation to go ahead. That is the case in the situation of vehicle manufacturers who make a car that’s faulty, causes accidents, causes collisions, causes injury. You can sue them.

Car dealers — if the car dealer makes a faulty repair that otherwise contributes to an injury of somebody using a vehicle. Makers or suppliers of vehicle parts — there’s a bunch of brake pads that don’t work. You can bring litigation against them. Garage service operators — again, intuitive. If you don’t properly fill up the brake fluid and the brakes don’t work, you can be sued.

Liquor licensees who overserve, recognizing the responsibilities of hosts in this province who are licensed liquor servers, who are obligated to not overserve their patrons and to have some host responsibility. A person whose use of an operational vehicle caused bodily injury and results in their conviction under certain Criminal Code offences. We’ve had a lot of discussion about that. Then, of course, the category that we’re talking about, which are the regulations.

TMJ, I’m advised, is the temporomandibular joint.

S. Cadieux: I’d like to move on to the portion of section 32, 120, the corporations duty respecting benefits. This is the section, really, where we outline the fact that we are now to trust a kinder, gentler ICBC.

[4:40 p.m.]

Certainly I think that many people who have experienced this process…. Whether it be for a relatively minor collision and needing a car repair or whether it be someone who has sustained a significant injury, the reality is that most people would say: “I don’t trust ICBC to fix my car, but now you’re asking me to trust ICBC to fix my spinal cord injury, my broken neck, my life.”

Can the Attorney General explain here or provide a deeper explanation, perhaps, of how the ICBC case manager, or whatever they might be called, will be able to determine what benefits — and in that case, let’s focus on health-related benefits — someone would and should be eligible for and be receiving? How do they fulfil that duty? How do they fulfil that duty without the individual bringing forward a request or without a prescriber of service intervening?

Hon. D. Eby: The person on the ICBC side is going to be expert in the benefits that are available under the system, but they are not going to be the medical experts about what the treatment is the member describes: trusting ICBC to fix my spine or trusting ICBC to fix my “insert injury here.”

That’s not the case. The medical expert is the treating physician or the specialist, and it’s the physician — the medical professional, paramedical professional — that the claimant is working with who presents the situation to ICBC, and then it’s the obligation of the ICBC person to advise about what benefits are available in that person’s situation.

The member and her colleague keep insisting that we are suggesting that people trust ICBC. That is not the case. We are saying that one of the biggest challenges will be a cultural shift to make sure that this happens. So we have put safeguards in place.

When I had a career before law school, I wrote loss prevention and safety programs for big retailers, and one of the clients that I had was a credit union chain. They called it their system of working with employees so that checks and cross-checks to make sure that the rules were followed…. They called it “informed trust.” The idea is that if somebody is working, it’s not that we don’t trust you, it’s just that we’re going to put a number of safeguards in place to make sure that our trust of you is informed by someone else looking over your shoulder.

What I say to ICBC is: “I believe you have good intentions around this new system. It’s not that I don’t trust that you have good intentions around this new system. But on behalf of British Columbians, our government wants to make sure that that is an informed trust. The way we can inform that trust is by having people look over your shoulders.” That is the medical professional who is assisting somebody. That is the Ombudsperson. That is the fairness commissioner. That is the civil resolution tribunal. All of it encompassed within duties set out in the statute.

[4:45 p.m.]

The other piece is…. One of the realities of the current system is…. I was talking with a personal injury lawyer who explained the challenge around expert reports. The reason why expert reports only get sent over to ICBC within X number of days before trial is because you don’t want to show all of your cards before a trial, because then ICBC is going to use that to try to drive down your settlement before trial.

The effect of that means that an injured person, although entitled to benefits from ICBC immediately, doesn’t access those benefits and instead borrows money from their lawyer at 10 percent interest in the lead-up to the trial date to get various treatments. These are things that don’t happen anymore.

There will be, hopefully, a more open communication between people who are injured in collisions and ICBC, because litigation is out of the picture. People will be like: “Look, here’s what I’ve got from my family physician. Here’s what I’ve got from the specialist they referred me to. These medical professionals say I need these things.”

It will be the medical professionals with the claimant who set out the context and then the ICBC person that says: “Here are the benefits that are available to you in this context that you presented to me. If you disagree with me, we have internal appeal mechanisms and we have external mechanisms that are available to you. It’s my obligation to tell you what these benefits are.”

I don’t ask that the member trust ICBC at all. But I do ask the member to understand that we’ve put a number of safeguards in place to inform trust around the intent that we have in the system that we’re putting forward so that things can be fixed if they go sideways.

S. Cadieux: Well, a long answer to a pretty simple question, I thought. Perhaps the Attorney General is just trying to run the clock a bit.

Let’s dig into this a little bit. If someone has a brain injury and can’t advocate for themselves, who will be able to speak for them in the circumstance where they have been denied a benefit and wish to appeal, or would even know how to appeal? Let’s assume they don’t know how to appeal and they’ve been denied a benefit. Who can speak for them?

Hon. D. Eby: This is a current-state issue as well. Someone who is catastrophically injured — how do they instruct counsel, how do they access benefits, and so on? In the case where someone doesn’t have any family members or anything like that, it’s the Public Guardian and Trustee. In the case where they do have family members, they might have a committee or a personal representative that can appear for them and assist in advocating for them.

[4:50 p.m.]

It’s not an issue that is particular to any system. Any time someone is catastrophically injured and they need to access insurance benefits or any kind of benefit, or negotiate the end of their employment, or any of the things that happen after you’re badly injured, these systems are there, if necessary, in worst-case scenarios where there’s no family or friends to assist, or advocates or advocacy groups are unable to provide support.

But that is, fortunately, a rare exception, and I’m advised that for catastrophic injuries this is not typically where the disputes show up between ICBC and people receiving benefits. It tends to be more in the area of, for example, soft tissue injuries and, sort of, edge cases, I guess; that’s how I would describe them. So that issue also won’t necessarily go away except for one thing: that if they have a physician, if they have a specialist who is saying that they need these kinds of supports, then ICBC has an obligation to advise them of the benefits available.

And if for some reason ICBC doesn’t, then you can go to the civil resolution tribunal. And in fact, you’re further ahead under the new system. It is set up to be much easier for someone to appear if they need to appear on their own or with an advocate or with a lawyer. There is certainly nothing barring lawyers from doing this kind of work, and I imagine there will be some lawyers who do this kind of work, even in the new system.

I do want to note that with the new duty on ICBC, people under the new system will be in a much better position than the 40 percent of British Columbians right now who are injured in a collision but have no tort claim because there is either a single-vehicle collision or, for some other reason, they’re excluded from a tort claim.

I know — to the member — that these are very long answers. It sounds like it’s frustrating for her to hear me explain these things. But these are not easy issues, and it’s important that, at least on the record, people understand how the system is going to work, how the current system works or doesn’t work for people, and what we’re planning.

I have no interest in running the clock. I’ve got things I’d rather do.

S. Cadieux: Moving on to sub 121 (e) and (f), “Circumstances in which benefits reduced, suspended or cancelled or in which benefits not paid…. (e) if the insured fails to comply with prescribed requirements;” or “(f) prescribed circumstances.” Can the Attorney General please illuminate me on what those prescribed requirements and circumstances will be in regulation?

Hon. D. Eby: The existing exclusions and breaches in the existing part 7…. It already exists and should provide the member a list of what we expect, following consultation, will be in the new system. So we’re not looking to reinvent the wheel here. An example might be, you know, if you’re in custody, we’re not going to pay your income replacement while you’re in jail.

[4:55 p.m.]

Another might be that your doctor and other specialists agree that you can go back to work but you refuse to go back to that job. That might be another example of a breach or an exclusion, though you can’t get the income benefit if everyone agrees that you can go back to work. So a couple of examples, but the comprehensive list is already in part 7 about breaches and exclusions in the regulations there. We anticipate it will be the same.

S. Cadieux: On section 122, “Other sources.” My read of this section…. I’m not a lawyer, so certainly, I appreciate that if I’m incorrect, the Attorney will, of course, take a great deal of time to correct me.

I read this section to be that the corporation, ICBC, can’t pay a benefit owing to an injured party if there is another insurer that could or should also be compensating for that same injury. I would ask (a) if I am correct. And (b), in subsection 122(1)(d), what other prescribed sources could there be? Again, I would appreciate if I am incorrect to be corrected. If not, please….

What are the circumstances under which a prescribed source can’t be listed here and must only be in regulation, and then what are those regulated prescribed sources that would prevent ICBC from paying out a benefit?

Hon. D. Eby: I’ll be as brief as I can be. This section sets out priorities between multiple insurers. It says who pays first, who pays second, and so on. So the member is largely correct in her outline. An example of a prescribed system that might fall into this priority would be the extended health care benefits of an employer.

What this section aims to do is import the existing priority into the new system. It’s not our intention to change any of the existing priority of who pays first, who pays second, and so on.

S. Cadieux: A follow-up to that, then, please.

If an individual has an extended health plan that they had prior to an injury they incurred in a car crash…. Is the minister saying that that extended health plan would need to come first when it comes to the purchase of, say, for example, a service like physiotherapy?

[5:00 p.m.]

Hon. D. Eby: ICBC is the primary or first payer on core health care coverage. Examples of this are physio, family doctor stuff, occupational therapy, chiropractic, acupuncture, registered massage therapy — those sort of core health benefits. Then for extended benefits, the first payer is the extended health care. Examples of that would be income, supplements or, maybe, certain pieces of equipment, dental care or vision.

The issue with two insurers in priority is, of course: what if there’s a fight between the insurers about who pays what? By policy and regulation, we will be enabling ICBC to act as the primary insurer where ICBC believes that an extended health care provider has wrongly denied coverage. That will allow ICBC to be first payer on areas that ICBC might not otherwise be covering, in order to ensure that the person accesses the benefit while the insurers, essentially, settle their differences.

I hope that assists the member. I’m learning a little bit about priority as well.

S. Cadieux: Thank you to the Attorney General for that clarification.

Moving on to the health care and related expenses benefit, section 123 here, the way I read this — of course, I hope I’m correct — is that, subject to the rest of the bill, essentially, and whatever is in regulation, someone who is injured is entitled to payment or reimbursement for reasonable expenses relating to health care, prescribed services, prescribed equipment and medication.

The health care piece, I would hope, is fairly clear. However, who, under this section, would be authorized to prescribe services or equipment and medication? Is every doctor, every physiotherapist, every occupational therapist, every massage therapist, every chiropractor, every Chinese medicine doctor licensed to practise in British Columbia able to be a prescriber of services for an individual? Or are they limited to a list, for example? If the Attorney General could clarify.

[5:05 p.m.]

Hon. D. Eby: There are two kinds of prescription. There is the prescription that a doctor would write, or a nurse in some cases, under the Health Professions Act within their scope of practice. Then there’s prescription in terms of prescribed by regulation. This section uses prescribed under health care in a way that looks like it might be referring to what a doctor would prescribe, but it actually refers to prescribed in the regulations.

In the vast majority of cases, health care would capture…. This section says that ICBC can cover the reasonable expenses incurred for anything reasonably attached to health care. So that would capture the vast majority of things that ICBC could pay out benefits for, but it won’t necessarily capture everything.

Examples of additional categories that could be included in the regulations that might not immediately be captured by health care but would allow ICBC to pay for these benefits once they’re put into regulation, prescribed by regulation, would be services like dental; ambulance; nursing services; speech therapy; medications; telecommunication services in a hospital like a phone, TV; wheelchairs; bowel and bladder equipment; aids for communication; dressing; eating; grooming and hygiene; prothesis and orthosis, orthotics; medical reports which are not diagnostic but required to prove entitlement or scope of entitlement. In other words, ICBC could actually pay for a medical report that someone needs to show what they need ICBC to pay for.

So these are the kinds of things that will be prescribed by the regulation. ICBC can only pay out for those things that the law says they can. So it enables the creation of this list of things that are paid for by ICBC.

S. Cadieux: Following up, then, which medical providers or tests, etc., as the Attorney just pointed out, might need to be paid for from someone to prove someone needs something? Who ultimately has to write it out on a form? Who is ultimately going to have the authority to write it out on a piece of paper that Joe needs X for medical purposes, health-related care? Who in British Columbia will be given that authority, or will patients have to interact with, to get that? Clearly, many of the things mentioned are beyond the scope of practice for most family physicians in the province of British Columbia.

[5:10 p.m.]

Hon. D. Eby: The core of this system is that people are choosing their own health care providers, just like today, and that people who will be assisting the ICBC side with understanding what a person needs in order to get back as much functioning as possible…. It could be a doctor, an occupational therapist, an ophthalmologist, an optometrist, a dentist. They will go to the medical professional that has the scope of practice for whatever issue it is they’re facing. It is that professional who will be assisting ICBC with knowing what equipment or support the person requires.

S. Cadieux: Okay. In another circumstance, as a result of their injury, an individual is going to now require attendant care, personal care services. How will the number of hours of care be determined? Who will determine that? How will the care provider be determined? Will people be eligible to purchase those services independently, like it’s done through the CSIL program, or will they be required to purchase those services through a provider — like an agency type of provider of care — for personal care services, once that number of hours of care has been determined? Who will determine that number of hours?

Hon. D. Eby: The injured person will choose, in this case, most likely an occupational therapist, who will do a functional ability test. What is this person capable of doing on their own? What do they need assistance with? What do they need done for them? That will determine the amount of time that support is available for them. With the question of who can provide that support to the injured person, it is up to the injured person. It could be an agency, or it could be an individual hired by the person.

S. Cadieux: Thank you to the Attorney for the answer. Moving on to “Rehabilitation,” in 124. In the text, in the bill, it says: “Subject to the regulations, the corporation may do anything it considers necessary or advisable, including the payment of money, to contribute to the rehabilitation of an insured and to facilitate the insured’s recovery from the insured’s bodily injury.”

I have a question here about that definition, about rehabilitation and about recovery, and how those things are defined in the circumstances here. I’ll give an example. Technology is changing all the time. Certainly, weight-bearing is considered useful and good for individuals who are spinal-cord-injured, for example, to maintain bone mass for overall optimal health, but certainly, it isn’t going to help them recover from their injury if that injury is indeed a permanent paralysis, for example. But there are technologies that weren’t available ten years ago, like the robotic walkers that are now available in certain private therapy clinics.

Certainly, that would be seen to be a rehabilitation therapy that would be beneficial to people on an ongoing basis throughout their life but would not be, I expect, considered to be contributing to recovery from injury. Would that sort of therapy be covered under rehabilitation?

[5:15 p.m.]

Hon. D. Eby: This section is written in a very broad manner. It’s very broad — and it’s also very broad in Manitoba and Saskatchewan — because the idea is that the insurance company is in line with the client in terms of interests, presumably, which is that everybody wants the client to get back to the activities of daily life, back to work, these kinds of things. So this empowers ICBC to do whatever — anything it considers necessary or advisable, including paying money in order to help somebody recover or rehabilitate.

The member is interested in rehabilitation versus recovery. I can advise the member that rehabilitation is typically thought of as an activity that contributes to restoring or maintaining function. It’s going to stop the person from backsliding in terms of the function they have, or it’s going to assist them in restoring additional function that they don’t currently have. That is what is typically thought of in terms of rehabilitation.

This section is meant to not prevent ICBC from providing something. It’s like: “Oh, man. If we only had a scooter for this person, they’d be able to go back to work and have a lot of their old life back. But unfortunately, we didn’t put scooters in the regulation.” This is a bad example, because, of course, mobility devices would be in the regulations, but as an example: “Gosh, I wish we’d put that in the regulations. Or it was in the regulations, but because it’s not there, we can’t pay it.” But here, this section says: “Yeah, you can, ICBC. You can do those exceptional or unusual things that weren’t expected in order to help somebody recover or rehabilitate.”

S. Cadieux: Okay. Given the Attorney’s answer, perhaps this isn’t the right section or part of the bill. I stand to be corrected, but I’m going to ask the question. Perhaps if I’m in the wrong spot, then the Attorney can point me to the right spot to ask this question. Let’s say someone, by virtue of their injury, then, now requires significant home modifications to be able to leave hospital. It’s a multipart question, but I’m going to ask it all together.

How will those costs be assessed and approved? What if they need to move because the home they currently live in can’t be modified? For example, if they live in a three-storey townhome but now require a wheelchair, how are the likely additional costs of buying a home now to be covered? What if down the line — say, ten years — someone needs to move, in order to take a different job? How will the costs of modifying a home at that point be assessed and approved? What if it happens multiple times? Can the Attorney address that here, or should I be addressing that to another section?

[5:20 p.m.]

Hon. D. Eby: I thank the member for the question. This is a very complex statute, and I have experts in my ear — lawyers and experts on insurance — providing me with some of the answers. I hope the member doesn’t hesitate to ask questions even if she’s not sure which section is which in terms of the applicability, because it’s important we answer the questions for the public and for her to fulfil her duty as opposition.

This is the section. Despite this being a complex statute, the member is absolutely right. All of the scenarios that the member discussed where the person is in a current home that needs to be retrofitted in some way — this section enables that to happen. This section enables the possibility of paying for moving to a new place that’s more appropriate in terms of the person’s ability following the accident.

Then, in addition, it’s so broad that it could include…. Let’s say that you were in the process of building a new place to move to. It could involve modifying the building plans in order to make it more accessible. All of that is captured and enabled by this section. That is contained within the $7½ million of benefit under the new system.

S. Cadieux: Thank you to the Attorney for the answer. I think I got part of the answer. Certainly, these things can run large sums of money very quickly and certainly can happen multiple times in a person’s life, if they are needing to move, for example.

I would assume — I’m going to pass this back to my colleague at this point, so I’ll just ask the question, and a simple answer from the Attorney to the affirmative would be appreciated — that this would be the same with the purchase of accessible vehicles, that the full cost of those accessible vehicles would be covered, not just the modifications, and at multiple points in time given that most vehicles have to be replaced at some point. On average, it’s around eight to ten years, so that can be a lot of vehicles, and the added cost of accessible vehicles is significant. I assume from the Attorney’s previous answer that those costs would also be covered by this section.

Hon. D. Eby: I understand that I didn’t answer the member’s full question last time after I sat down. The answer is that if you need to do future moves, that is also covered under this section.

[5:25 p.m.]

I think that is the full answer, but the member should let me know if I’ve missed sections. It’s not deliberate.

The regulations will enable the purchase of successive vehicles — that is, one after the other — as they’re required by the individual. The regulations will say that the make and model must be appropriate to the individual’s circumstances and injuries, which is just a safeguard to make sure that it’s not luxury vehicles or whatever — that it’s an appropriate vehicle. It does contemplate that vehicles do need to be replaced and that multiple retrofitted vehicles can be purchased after the previous vehicle is no longer appropriate.

M. Lee: I just wanted to come back to section 120. With the obligation and the duty on the corporation, under subsection 120(b), it has the lead-in language “endeavour to” as opposed to an outright obligation that the corporation must “…ensure that the individual is informed about, and receives, benefits payable to the individual under this Part.” Can I ask the Attorney General: what is the standard of interpretation around the words “endeavour to”?

Hon. D. Eby: The statute is drafted this way to recognize a couple of things. One is that we want ICBC to make their best efforts, to endeavour to ensure that the individual is informed about and receives benefits payable to the individual. But if the person provides incomplete answers about what’s happening, or not full information, if they move, or they’re not returning phone calls and the letters are going to their old address, and they’re not updating their address or something like that, it doesn’t mean that ICBC has to hire a private eye and track down wherever the person went.

It’s kind of a recognition that there are two parts to this. One is that we want ICBC to have to — we put it in here that the corporation must endeavour — ensure that the individual is informed about and receives the benefits. But there’s another part, which is that the claimant needs to be available to receive the information. ICBC needs to take those steps to make sure the person understands it, but if the person doesn’t understand, they need to ask for clarification.

So there are two parts. There’s the transmitter and the receiver. For the transmitter side, the corporation and the deliverer of the benefits, we wanted this obligation in here. But we also wanted to recognize that there may be circumstances where, for one reason or another, the claimant is inaccessible to deliver that information and that what we wanted to capture was best efforts.

[S. Gibson in the chair.]

M. Lee: To the last point, I think I heard the Attorney General say “best efforts,” but there’s a big difference between “best efforts” and “endeavour to.”

[5:30 p.m.]

“Endeavour to” sounds like: “Well, we’re going to try. We’re going to try to ensure that the individual is informed about their benefits, and we’re going to try to ensure that the benefit receives benefits payable to the individual under this part.” So the test and the duty on the corporation is “try.” I do not read in “best efforts” into this test. Is that correct?

Hon. D. Eby: The wording is and the test is: “The corporation must…endeavour to ensure that the individual is informed about, and receives, benefits payable to the individual under this Part.” That’s the test the court will apply and be asked to apply.

M. Lee: Well, I think courts have the understanding of what “reasonable efforts” are and what “best efforts” are. We’ll see how they interpret “endeavour to.”

I need to go to section 169. This is the flip side of duties, in terms of the reg-making powers under section 169. I mentioned this in the first part of committee. It includes: “respecting duties and obligations of a person claiming a benefit.” In response, the Attorney General cited the part 7 regs on benefits.

I just want to ask the Attorney General: when he speaks to safeguards, in what way, if anything, has the duty changed, whether it’s on ICBC or on the claimant, under the current system versus under Bill 11?

Hon. D. Eby: There are no changes anticipated from the existing part 7 benefits, in terms of the duties and obligations of an individual under either part 7 of the existing system or under the new system. I do note this section…. With respect to government and ICBC, there is a difference.

Subsection 169(4) creates the possibility for government, by regulation, to prescribe additional duties or obligations onto ICBC. So I hear the member’s concern about the wording of section 120. If it appears that there is some kind of an issue, government, by regulation, can prescribe additional duties and obligations onto ICBC using sub 169(4).

M. Lee: This goes back to the question the Leader of the Third Party had asked before about the culture change. When we talk about the duties of ICBC and what’s under part 7 here, the Attorney General had asked about hearing from clients who have dealt with ICBC and their adjusters. The duty, as the Attorney General just indicated, is the same. It’s the same arrangement under part 7.

[5:35 p.m.]

I have a letter here from an occupational therapist who talked about a client of theirs who was 20 years old, suffered a severe traumatic brain injury as a result of being a passenger in a car accident, went through extensive rehabilitation at G. F. Strong in Vancouver. And when asked the question, in approaching the adjuster in that call, this OT shared with the adjuster, based on the extent of the injury and persistent, significant and severe cognitive limitations after months of rehabilitation, that it was unlikely he would be able to live independently or be competitively employable again. The adjuster, hearing that, then responded and said: “Then what’s the point in funding your recommendations?”

Despite the duties that are in place…. I know the Attorney General has talked about that as being a training deficiency. Maybe that’s a training deficiency in terms of the culture expectation that is expected here. But in terms of the legislation itself, the Attorney General can point to section 169(4) for further regulations in the future to correct how the corporation may not be meeting its duty under section 120, when the courts determine that it’s failing to endeavour to ensure that the claimant is getting their benefits.

This is a very convoluted system that the Attorney General is building here and one that is really lacking in something that British Columbians can rely upon.

I need to just go to one other question here. That is in respect of the so-called safeguards the Attorney General has cited. Under section 167, that sets out the disputes with the corporation. As we’ve heard the Attorney General cite in many instances: the fairness officer, the new office to be created, the Ombudsperson, the CRT. Just two observations there. One is that the CRT, to date, has a track record of 34 decisions or so — 33 of which are in favour of ICBC, not the claimant. Whenever they’re disputing something through the CRT, it’s an almost 100 percent track record of aligning with ICBC.

To the Attorney General: in this whole dispute regulation mechanism, to be determined by regulation, where will the binding steps be? We’ve got an adjuster that will have to go to their manager, and the manager will have to go to the fairness officer. But what is actually binding on that adjuster, other than a CRT decision and a judicial review at a very high standard?

Hon. D. Eby: A couple of things. I said the duties are the same on the client or the customer. I did not say that the duties were the same on ICBC, because it’s a new obligation to endeavour to ensure that the individual is informed about and receives the benefits. It’s replicated from Saskatchewan and Manitoba. There was an existing duty on ICBC to engage in good faith on the contract, but this is a new and additional duty.

[5:40 p.m.]

I can keep saying it, and I know the member knows it, but again, we run into this frustrating scenario where he knows certain things and then doesn’t know them a few questions later. Any time there is a concern about the conduct of an ICBC adjuster, the member knows, I hope, that MLAs have a hotline to ICBC directly or through my office. I’m glad to do what I can to provide support.

The scenario that he outlines sounds totally unacceptable, keeping in mind the nature of the report and the context. But if someone was denied benefits that were entitled to them by an adjuster who said, “What’s the point of providing, of funding, those recommendations if the person won’t be able to go back to work?” or something like that, that sounds totally unacceptable to me. And I’m glad to assist the member and that occupational therapist in supporting that client by asking ICBC to have a look at that.

The member says that this is a very complicated system that we’re building here. I would suggest that the system that we have is way more complicated. I mean, here’s a system where we have two different streams and where your benefits vary depending on who hits you and what kind of insurance they’re carrying. It’s a system that leaves 40 percent of people in the dust because they don’t have a tort claim running with benefits that the member’s own colleagues acknowledge are insufficient. For those 40 percent of British Columbians, it’s not working. And they have had the misfortune of having a car collision that doesn’t meet the requirements to be able to benefit from the system that we’ve set up.

Then for the others who do have a tort claim, it depends on who hits you, in the sense of what kind of insurance they’re carrying. That governs what kinds of benefits you see. It doesn’t matter if you’re a mom with two kids and your partner has been wiped out in a rear-end collision by a distracted driver. What matters is how much insurance that distracted driver had.

How can you govern your own conduct on the road not knowing what benefits are available to you? Most people don’t understand the reality of our system — that whether you’re going to get support to live a life with dignity after a collision or not depends entirely on how much insurance the person who hits you has. That is a complicated system.

We are replacing it with a system…. And you only get to recover it, potentially, as long as ten years after your collision, and you have to give 30 percent of it to somebody to help you navigate the system. A system where you have to hire a lawyer to obtain your benefits a decade later sounds like a pretty complicated system, and we are moving to simplify things quite dramatically. The simplification is resulting in dramatic savings that we’re passing back in the form of reduced costs and improved benefits.

Finally, the member cites a very flawed “study” by a personal injury lawyer around what’s happening at the civil resolution tribunal. The actual reality of the numbers, once they were corrected by the actual civil resolution tribunal: 56 disputes involving ICBC have gone to adjudication; six have found in favour of the applicant on both liability and damages; two found in favour of the applicant for liability but ultimately dismissed the claim for lack of proven damages. And 19…. Although the applicant was not successful in liability, the tribunal still noted it would have had to dismiss in any event because of one or more of the following: no jurisdiction to order the relief and no evidence in support of the damages. But the numbers….

They have 56. Okay, well, six found in favour of the applicant. That’s not great. These are in relation to minor injury claims. Maybe it should be more even. Actually, the vast majority of the disputes that have shown up so far have been resolved by agreement — 221 resolved by agreement. A very small number of disputes result by adjudication.

The numbers the member cites — I know where he got them from. He got them from a personal injury lawyer on Twitter, which is a source, but the member is going to have to push a little bit further. There was a column in the Vancouver Sun that set out the numbers that I just read. It’s not some sort of private set of information. The reason I knew it existed is because I read the article, and the member should avoid disparaging a tribunal in this province without accurate information.

[5:45 p.m.]

The Chair: Members, any further commentary on this?

S. Furstenau: My timing seems to be fortuitous. I had to step out, but I’m glad to have a few more moments to ask some questions on the record here.

I know you’ve been working through this section for a while, but I’m going to go to section 116, which outlines exceptions to the ban on legal actions, which includes exemptions for vehicle manufacturers, sellers, part suppliers, garage service operators, liquor licensees and those responsible for criminal code offences.

Could the minister provide examples of when those included in this list could be subject to legal action? And under this section, what criminal code offenses related to driving could result in that person being sued?

Hon. D. Eby: Consistent with Saskatchewan, the anticipated criminal code offences would include impaired driving, failure or refusal to comply with a demand or to provide a breath sample in relation to impaired driving, dangerous operation of a vehicle, criminal negligence causing bodily harm or death, murder and manslaughter.

S. Furstenau: Just going to jump to section 120. I’ve gone over one of these questions already. It’s critical that under this new system, people are able to smoothly and quickly access the support and compensation they’re going to need for their recovery.

A care-based model only works if British Columbians can quickly and reliably access that care and includes making the new system work well for the many British Columbians who do not have a family doctor. My apologies if this has already been touched on by the official opposition.

But with a person’s doctor working with ICBC to determine the care and treatment needed for those injured in a crash under this new model, how will this work for people who rely on walk-in clinics for their care, and how can we ensure this change doesn’t result in unequal outcomes for those already seeing unequal outcomes because they don’t have a family physician?

[5:50 p.m.]

Hon. D. Eby: Whether someone’s using an urgent primary care centre or a walk-in clinic, ICBC will be working with those doctors. Now, a lot of doctors are very reluctant to get involved with ICBC right now, because they find themselves writing extensive reports for the purposes of lawsuits.

We’re hopeful…. Our engagement with Doctors of B.C. is to remove as many barriers as possible to doctors working with the system so that they’re actually helping patients get better and finding that dealing with ICBC is significantly easier — which, we hope, will actually increase the number of doctors willing to support people through these processes. But if someone is compelled to use an urgent primary care or walk-in clinic, ICBC will be working with those health care professionals as is required.

We’re also, as government, engaging — and ICBC is as well — with Doctors of B.C. on whether there are other models that we could have in place in order to provide the support that people need. Obviously, the challenge around family practitioners is a significant one for the province. It’s leading to the establishment of the urgent primary care centres across the province, and it’s something that ICBC is prepared to work with as they go forward.

We’re hopeful that, in partnership with Doctors of B.C., we can find a model that works better than a simple walk-in centre physician visit, something that will provide more support to people in this circumstance. If we do, that’ll be a product of engagement with Doctors of B.C.

S. Furstenau: Sections 131 to 134 deal with income replacement benefits. This is a concern that was raised to us by a number of people: earnings potential. How would it be fairly dealt with, particularly in the case of a young person — a student or an early-career worker faced with very significant injuries which would prevent them from working again? What can the minister tell us about how that would be fairly dealt with — the concern being that if there’s a cap on that, people would not have enough for lifelong lost earnings?

Hon. D. Eby: Under the new system, people will receive benefits that recognize that even a child in grade school who has lost school years will get a per-year benefit. For students and minors, the floor, currently, of what we’re looking at would be the industrial wage average for the province. That’s how Saskatchewan and Manitoba handle that. The benefits would be, at a minimum, the industrial wage average.

[5:55 p.m.]

I note that for British Columbians who are earning $93,400 or less, they’ll get 90 percent of their net income for the rest of their lives until they’re 65; after that, a retirement benefit. There is no overall cap on their income replacement.

Like the member, I’ve received correspondence indicating concern about this. But what people may not realize, and many of my correspondents don’t realize, is that there is a cap in the current system on your income replacement, which is the value of the insurance policy of the person who hit you.

I read a letter into the record from someone that realized, to her family’s horror, that the coverage available to their family was four years, to replace the husband and father’s salary. He was critically injured in the collision and is unable to work. They’re covered for four years. That would not happen under this new system.

The average amount of insurance carried by British Columbians is about $2 million. After you pay off your 30 percent to the lawyer who is assisting you, that leaves you with $1.4 million to live on for the rest of your life.

Assuming that you’re going to use somewhere in the neighbourhood of $200,000 to $300,000, maybe $400,000, for rehabilitation and other services — maybe purchasing a vehicle and retrofitting your house — that leaves you with $1 million to live on for the rest of your life. That sounds…. Who wouldn’t love to have $1 million? However, if you’re expecting to live more than 20 years, it’s not enough money. It’s about $50,000 a year, plus whatever interest you’re earning on the capital as you eat through it.

Under the new system, you will have certainty that at a minimum, you will have the industrial wage average in the province for the rest of your life as well as a retirement benefit after you turn 65. With people living longer and longer, we know that that will be more and more important.

S. Furstenau: Thanks to the minister for that clarification.

I’m just going to go to one section — I think just speaking to the fact that this is meant to be a care-based model. In section 124, it says: “Subject to the regulations, the corporation may do anything it considers necessary or advisable…to contribute to the rehabilitation of an insured and to facilitate the insured’s recovery from the insured’s bodily injury.”

My question is to the minister. Why use the language of “may” rather than requiring ICBC to put recovery and rehabilitation at the core of how it makes its decisions?

Hon. D. Eby: ICBC must advise people and assist them in accessing their benefits. They may, in doing so, do anything that they need to do that’s necessary or advisable, which includes paying money to contribute to the rehabilitation of an insured person and facilitate their recovery.

This is a very broad section, which is intended to prevent a scenario of where there is something that would really help somebody, but it’s not specifically prescribed in one of the regulations as something ICBC can pay for. So ICBC is like: “Well, we can’t do it because it’s not in the law. Everyone recognizes it would help you get back to work. It would help you rehabilitate. But it’s not specifically set out in the law, so I’m sorry, we can’t do it.”

This is meant to take that away and say: “No, you can do anything that’s necessary or advisable, even including giving a person money, if it’s going to help with their rehabilitation, if it’s going to facilitate their recovery from their injury.”

It’s based on a similar clause in Manitoba and Saskatchewan. It’s not meant to be limiting or to provide ICBC with an out. It’s meant to take an out away. It’s meant to prevent the answer coming back of: “Well, I’m sorry. That specific benefit is not prescribed by law, so we’re not able to do it.” This takes that away and forces ICBC to consider if there’s something outside the box here that’s really going to help somebody.

[6:00 p.m.]

The Chair: Shall section 32 pass as amended?

Division has been called. We’ll take a recess now and meet momentarily for a formal division vote.

The committee recessed from 6:01 p.m. to 6:11 p.m.

[S. Gibson in the chair.]

The Chair: We will be proceeding shortly with the deferred division vote as per the sessional order.

[6:15 p.m.]

We will now proceed with the deferred division. This is on section 32, Bill 11, as amended.

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

Section 32 as amended approved on the following division:

YEAS — 42
Chouhan	Kahlon	Begg
Brar	Heyman	Donaldson
Mungall	Bains	Beare
Chen	Popham	Trevena
Chow	Kang	Simons
D’Eith	Routley	Ma
Elmore	Dean	Routledge
Singh	Darcy	Simpson
Robinson	Farnworth	Horgan
James	Eby	Dix
Ralston	Mark	Fleming
Conroy	Fraser	Chandra Herbert
Rice	Malcolmson	Leonard
Furstenau	Olsen	Glumac
NAYS — 41
Cadieux	de Jong	Bond
Polak	Wilkinson	Lee
Stone	Coleman	Kyllo
Bernier	Thornthwaite	Paton
Ashton	Barnett	Yap
Martin	Davies	Reid
Sullivan	Isaacs	Morris
Stilwell	Ross	Oakes
Johal	Wat	Rustad
Milobar	Sturdy	Clovechok
Shypitka	Hunt	Throness
Tegart	Stewart	Sultan
Redies	Letnick	Thomson
Larson		Foster

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

Motion approved.

The committee rose at 6:26 p.m.

The House resumed; Mr. Speaker in the chair.

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

Hon. M. Farnworth moved adjournment of the House.

Motion approved.

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

The House adjourned at 6:27 p.m.