An Open Letter To David Eby
Attention: Hon. David Eby, Q.C.
Re: Bill 20
You may remember me from law school. I graduated a year ahead of you before returning to Vancouver to begin practicing law. I live in Melanie Mark’s riding in East Vancouver, and I work in Rick Glumac’s riding in Port Moody.
I began my legal career at a large firm in Vancouver, where I worked mainly for insurance companies. I did a lot of work for ICBC and other insurers. I continued in that role for about seven years before moving to a smaller law firm in Port Moody where I have had the pleasure of working with three of our other classmates from law school. Our law firm has been part of the local community for almost 40 years, and we are the largest firm in the Tri-Cities. We are extensively involved in community events and activities, and we are proud of our contributions to the local community, as well as the local economy.
My current law practice is roughly 75% plaintiff personal injury. The rest is a mix of different areas of civil litigation. I no longer represent insurance companies as a matter of personal choice. I prefer to work for individuals who need my help, and whose lives are genuinely affected by the advocacy I provide for them. The relationship between an individual and an insurance company is one of extreme power imbalance. Without the assistance of legal counsel, many of my clients would suffer serious deprivation and harm at the hands of insurers.
I am a long-time supporter of the NDP, both provincially and federally. In almost 25 years of voting I have consistently supported the NDP. I have also contributed financially to both the provincial and federal NDP.
I followed the press reports of your involvement with Pivot Legal Society, and later the B.C. Civil Liberties Association. I was happy to see a former schoolmate advocating on behalf of vulnerable people, and giving them a voice. I believe it is extremely important that people who do not have the power to stand up for themselves have access to effective advocates who are willing to fight on their behalves in support of their rights and interests.
I followed the rise of your political career, and I was optimistic that your history of grassroots community work and advocacy for the underprivileged would influence your work as an MLA. I followed you on Facebook, and I enjoyed watching you in question period as you worked to hold the former government accountable. Accountability is after all the greatest hallmark of any democracy.
In this past election I made a significant financial contribution directly to your campaign. I believed it was time for a change of government, and I liked what I heard from John Horgan and his vision for British Columbia. I felt that, given your past work, you would make a positive contribution to government if given the opportunity to do so. I believed you would continue to fight for those who need it, the most vulnerable people in our society.
I was also influenced by the NDP’s promise not to introduce a no-fault system of compensation for motor vehicle injury claims. In my years of work as a personal injury lawyer, both for and against insurance companies, I have seen the importance of a full tort system in ensuring that people are treated reasonably and fairly. For that reason I am extremely disappointed by your government’s decision to institute a largely no-fault system for motor vehicle claims, and by your personal role in championing such a system.
The purpose of an award of general damages in personal injury cases is to provide some measure of compensation for the pain, suffering, and loss of enjoyment of life that inevitably occurs with injury. It is a consolation for the loss of something of great value, which cannot be replaced with money. In a unanimous judgment in Lindal v. Lindal,  2 S.C.R. 629 at 637, the Supreme Court of Canada put it this way:
Thus the amount of an award for non-pecuniary damage should not depend alone upon the seriousness of the injury but upon its ability to ameliorate the condition of the victim considering his or her particular situation. It therefore will not follow that in considering what part of the maximum should be awarded the gravity of the injury alone will be determinative. An appreciation of the individual’s loss is the key and the “need for solace will not necessarily correlate with the seriousness of the injury” (Cooper-Stephenson and Saunders, Personal Injury Damages in Canada (1981), at p. 373). In dealing with an award of this nature it will be impossible to develop a “tariff”. An award will vary in each case “to meet the specific circumstances of the individual case” (Thornton at p. 284 of S.C.R.).
The cap system introduced under Bill 20 is specifically designed to deprive injured people of the consolation to which they are legally entitled. It imposes an arbitrary tariff on an extremely broad range of cases, without any regard to the individual’s loss or specific circumstances. It does exactly what the Supreme Court of Canada said could not be done in accordance with principles of fairness and equity. Bill 20 is inherently unfair by design.
As a personal injury lawyer I routinely see the serious and even devastating effects that injuries can have on people. They disrupt and ruin the plans and goals that people set for themselves. They deprive people of their happiness, their passion, their optimism, and their independence. At their worst they destroy relationships, careers, and even lives. This is particularly the case with chronic pain and psychiatric conditions, two very serious medical conditions that you, your government, and ICBC seem to consider “minor injuries”.
My concern with Bill 20 is not only the fact that your government has taken away people’s important legal rights, but the way in which you have done it, and the perhaps unintended consequences it will have. I know that you are busy, and that you have already heard many of the arguments against a cap system, and I will therefore be brief.
The law you have passed is overly broad, in that it classifies a variety of serious injuries, including pain syndromes and psychiatric conditions as “minor”. The reality is that even relatively minor symptoms can have a very significant impact on people’s quality of life, especially when they become chronic. This is often a gradual process, and the full impact of injuries can takes years to manifest. The definition of “minor injury” ignores the cumulative effect that pain and psychiatric conditions have on the people who struggle with them. Under your cap system, many people who seem to have “minor injuries” will be told early on by ICBC (and the CRT) that they have minor injuries, and that they are therefore entitled to no more than $5,500. Many of those people will settle their claims long before the full impact of their injuries are known, and they will have no recourse once the true nature of their injuries becomes clear. Some of those people will go on to suffer from a lifetime of pain and disability, for which they will receive no compensation.
You have also enabled the future expansion of the definition of “minor injuries” by Regulation. You have admitted that you have done so with the specific intention of preventing our courts from narrowing the definition. This will also prevent the fulsome legislative debate that such an important issue clearly deserves. I find this incredibly cynical and undemocratic.
Under the legislation that you have championed, the first gatekeeper for the interpretation of “minor injury” will be ICBC, and the second will be the CRT. Neither institution is properly constituted to safeguard the interests of injured people. On the contrary, ICBC sees its mandate as the deprivation of injured people’s legal rights, and has demonstrated time and time again that it does not put the interests of injured British Columbians first.
I can tell you from personal experience that ICBC is often unnecessarily aggressive and confrontational when dealing with injured people. It routinely forces them to spend tens of thousands of dollars on expert witnesses to prove things that experienced and reasonable insurance adjusters are capable of simply admitting. It routinely denies liability when there is no reasonable basis for doing so, further driving up the cost of litigation. It routinely denies coverage for medical and rehabilitation expenses, and other Part 7 benefits, when there is no rational basis for doing so, forcing injured people to either pay for their own medical care, or go without. It routinely hires expert witnesses who our courts have found to be biased advocates, paid by ICBC to diminish and distort the cause and effect of people’s injuries. It routinely accuses injured people of lying and exaggerating, without any evidence whatsoever to support such allegations. It belittles and intimidates injured British Columbians every single day, as a matter of corporate policy.
I was contacted yesterday by a kinesiologist who is treating one of my clients. She has a pre-existing disabling psychiatric condition, and very limited means. She has a complex pain syndrome as a result of soft tissue injuries she sustained in two separate car accidents for which she was not at fault. She requires a level of care and rehabilitation that is sensitive to her particular circumstances, and she has been receiving 90-minute kinesiology sessions in a pool environment. The kinesiologist informed me that ICBC has recently changed its internal policies in an effort to reduce the amount of money it is spending on rehabilitation. As a result of these changes, ICBC will no longer fund 90-minute sessions of kinesiology for my client, and instead she will be limited to 60-minute sessions. I have told the kinesiologist that I do not care what ICBC will pay, and I have asked him to give her the care she needs, and to send his bills to my law firm for payment. My law firm routinely finances necessary medical care and rehabilitation costs for injured people because ICBC refuses to pay for it. I can give you countless other examples where my clients have had to depend on my law firm to ensure they are getting proper medical care because ICBC simply refuses to provide it.
Like many other personal injury lawyers, I also spend hundreds of hours each year trying to get ICBC to pay for the medical, rehabilitation, disability, and homemaking benefits it is statutorily required to pay. New clients often come to us not because they want compensation for their injuries, but because ICBC has refused to pay for their treatment. As a general rule, personal injury lawyers do not charge any fee when we recover these benefits for our clients. What allows us to spend all this time and effort pursuing benefits for which we do not charge a fee, is the contingency fee we will later receive on the pain and suffering award. When you take that away from injured people, you not only take away their right to fair compensation, but also their ability to retain legal counsel to advocate on their behalf. You take away their access to justice, and you leave them at the mercy of an insurance company whose sole motivation is to pay them as little as possible.
You have sought to justify the stripping of British Columbians’ tort rights by increasing no-fault Part 7 coverage. In doing so you have taken away many people’s ability to fight for those rights when ICBC denies them. This will have a particular impact on people with low incomes, people with disabilities, immigrants, and working families who cannot afford the cost of the treatment ICBC refuses to fund, much less the cost of a lawyer. Many of those people will be left without any recourse whatsoever when ICBC denies their claims. That is the direct impact of Bill 20.
To add insult to injury, you have also stripped injured people of the right to have their claims adjudicated by our independent judiciary. The CRT lacks both the expertise and the independence to properly determine the important issue of whether or not injured people are entitled to fair compensation for their injuries. It is an attack on the independence of our judiciary and an affront to the proper administration of justice. I am confident that for those reasons it will ultimately be found to be unconstitutional.
You have been presented with a number of reasonable measures to help address the financial impacts of the historic mismanagement of ICBC, without prejudicing the legal rights of injured British Columbians. You have chosen to reject those measures, and instead you have taken the side of the insurance company, against those who have suffered injury through no fault of their own. You have also shifted the cost of motor vehicle insurance from negligent drivers to their innocent victims, when it clearly ought to be the other way around. Your decision to strip injured people of their legal rights, and their access to justice, is contrary to everything I believed you and the NDP stood for. As a lawyer, and as a lifelong NDP supporter, I find this extremely troubling. In good conscious I can no longer support either you or your party if this is what you stand for.
It is not too late to fix this terrible mistake. I urge you to take a moment to think about the ordinary British Columbians that this will affect. Those with seemingly minor injuries that later become very serious. Those who can’t afford to pay for their own therapy when ICBC refuses to fund it. Those who lack the sophistication, the resources, or the expertise to stand up for their own rights. Those who not long ago, you stood up for. I am asking you to stand up for those people again, and to do the right thing. It is still not too late.
Yours very truly,
BTM LAWYERS LLP
Shadrin M. Brooks
cc: Rick Glumac
Hon. John Horgan
Hon. Melanie Mark
Dr. Andrew Weaver
Andrew Wilkinson, Q.C.