Third Session, 41st Parliament

(2018) OFFICIAL REPORT

OF DEBATES

(HANSARD)

Thursday, May 10, 2018

Afternoon Sitting

Issue No. 134

ISSN 1499-2175

The HTML transcript is provided for informational purposes only.

The PDF transcript remains the official digital version.

CONTENTS

Routine Business

Introductions by Members

Orders of the Day

Third Reading of Bills

Bill 27 — Pill Press and Related Equipment Control Act

Committee of the Whole House

Bill 20 — Insurance (Vehicle) Amendment Act, 2018 (continued)

J. Yap

Hon. D. Eby

M. Lee

A. Weaver

Report and Third Reading of Bills

Bill 20 — Insurance (Vehicle) Amendment Act, 2018

Proceedings in the Douglas Fir Room

Committee of Supply

Estimates: Ministry of Health (continued)

J. Isaacs

Hon. A. Dix

C. Oakes

D. Ashton

N. Letnick

THURSDAY, MAY 10, 2018

The House met at 1:32 p.m.

[Mr. Speaker in the chair.]

Routine Business

Introductions by Members

Hon. M. Farnworth: In the gallery today and touring the precincts are 45 grade 11

students and two adults from perhaps one of the greatest high schools in

British Columbia, named in honour of the most famous British Columbian ever,

and that is Terry Fox Secondary. They’re accompanied by a teacher who has

dedicated an awful lot of years to teaching young people at Terry Fox, Mr.

Don Van Os. I would ask the House to please welcome those amazing students,

from an absolutely incredible school, and make them most welcome.

Orders of the Day

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

Third Reading of Bills

BILL 27 — PILL PRESS AND RELATED

EQUIPMENT CONTROL

ACT

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

time and passed.

[1:35 p.m.]

Hon. M. Farnworth: In this chamber, I now call committee on Bill 20. In Committee A,

I call continued debate on the estimates of the Ministry of

Health.

Committee of the Whole House

BILL 20 — INSURANCE (VEHICLE)

AMENDMENT ACT, 2018

(continued)

The House in Committee of the Whole (Section

B) on Bill 20; L. Reid

in the chair.

The committee met at 1:37 p.m.

section 29 (continued) .

J. Yap: I would like to pick up where we left off from this morning. We

were having a good discussion with the minister on

section 29, which is

a key

section of this bill, which deals with the definition and the

whole aspect of minor injuries. Just before the adjournment, the

minister had discussed some of the measures taken, and I’d like to

follow up on this.

Other than the government’s announcement of the red-light camera,

photo radar 2.0, can the minister tell us what he has planned,

specifically, to address distracted driving? Because we know from many

studies that 90 percent of people carry these devices, the smartphones,

and regrettably, many still use them and are distracted while driving a

motor vehicle. Can the minister tell us what, specifically, he and the

government are doing?

Hon. D. Eby: I’m going to again take exception to the member’s attempt to stop

government from preventing people from speeding through red lights in

intersections — where there are more than 80 accidents on average per

year, causing death, injury and destruction — by calling it photo radar

2.0 and attempting to organize people to stop this from

happening.

I am astounded that that is the position of this opposition, and I

find it completely irresponsible — not only with respect to ICBC’s

finances but with respect to the injuries and deaths that would be

caused if we didn’t begin to try to get those numbers of accidents at

those intersections down with great big signs that say: “If you speed

through this intersection and go through a red light, you will get a

ticket.” It is incomprehensible to me why the member insists on

that.

With that said, I’ll run through a number of the initiatives that

government’s brought underway in just nine months. I’ll note that for 16

years, there was a lot of time to do work on distracted driving. That

was not done.

We increased public awareness of the risk of distracted driving

through a new advertising campaign in September. We talked about the

red-light cameras, which the member opposes; designated distracted

driving as a high-risk behaviour under ICBC’s driver risk premium

program, making distracted driving a DRP offence for the second

violation.

[1:40 p.m.]

Distracted driving technology pilots. This is technology that a

customer can put in their car, or it could potentially be used for new

drivers or multiple offenders, which would prevent them from using their

phones while they’re driving, or it could potentially be taken on

voluntarily by British Columbians in exchange for lower insurance

premiums.

We have a dangerous roads initiative, a collision reduction

program to identify and retrofit infrastructure regulations and signage

at dangerous roads and intersections across the province.

I think I canvassed but just to underline, we are doing a full

rate design review process, where high-risk drivers will pay more and

good drivers will be rewarded with lower insurance rates in order to

incent drivers even further to engage in good driving

behaviour.

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

order.

A. Weaver: I have some concerns about the line of questioning here. My

understanding of committee stage is that we’re to have questions with

respect to the

section at hand here. The

section we’re discussing is not

about red-light cameras. It’s specifically about definition and

interpretation of minor injuries. I fail to see the link between a

discussion of political purposes for bringing in red-light cameras, or

not, and the actual substance of this section, which is definition and

interpretation of minor injuries.

The Chair: Thank you for raising your point. Members certainly have

enjoyed latitude in the past.

J. Yap: We’ll move on from the cameras. Will the minister be working to

increase education and services to drivers about distracted, intoxicated

and, soon, high-on-cannabis driving?

Hon. D. Eby: ICBC regularly advertises to the public around safe driving

behaviours. I encourage the member to attend estimates, and I would be

happy to go in detail around their planned spending for the year on

advertising related to safer driving behaviours.

J. Yap: Can the minister tell us how many cases since 2012 have been

settled overall by ICBC?

Hon. D. Eby: The people who are here in the chamber are…. There’s ICBC’s chief

legal officer. We’ve got lawyers from the Ministry of Attorney General

and the executive director from the Ministry of Attorney General, who

are experts in this bill that’s in front of the House.

I will have detailed financial information, numbers related to…. I

will endeavour to recover this number for the member — the number of

settlements since 2012 by ICBC — for estimates, which is what that

process was set up for. I’m afraid I’m ill-prepared to provide detailed

financial or logistical information about ICBC, because we’re preparing

here to discuss the bill, and these are the experts I have in the House

here today. I would encourage the member to bring those questions to

estimates.

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

With the legal experts here, can the minister tell us how many

cases were settled outside of a courtroom?

Hon. D. Eby: I encourage the member to bring that question to estimates for the

same reason that I just outlined.

M. Lee: I appreciate the Attorney General’s comment just now, but given

the comments that were made before lunch, I’d just like to come back to

a point that was mentioned.

We’re trying to get at, of course, the purpose, the aim, the

objective and the benefit of having minor injury caps. That’s the reason

why, now, at this committee stage, we’re getting to these questions,

which relate to: what other initiatives does the government have planned

to deal with the concerns around increased accidents, the increased

costs from these accidents?

Coming back to a particular point, I’d like the Attorney General

to reconfirm a statement that he made. It was, I believe, an indication

that when he looks back, including over this last 12-month period,

there’s been a 260 percent increase in costs relating to minor injury

claims. Can I ask the Attorney General to reconfirm that statement and

perhaps provide elaboration on that statement?

Hon. D. Eby: In 2014, a third-party business firm was retained by government —

Ernst and Young. They were asked to do work. “Have a look at ICBC, and

tell us where the corporation’s going. Give us advice about where to

go.”

They provided a report directly to government. The report was not

released in its entirety to the public, nor was it released to ICBC. In

fact, the members of the cabinet — at least one has acknowledged doing

this — removed seven pages from that document.

Among those seven pages that were removed before it being released

to either ICBC or the public were pages that said the

following.

[1:45 p.m.]

“ICBC has some work to do in further optimizing its operations;

however, these changes alone will not contain claims growth to within

sustainable levels in the medium to long term, in particular with

regards to bodily injury claims costs.

“In order to sustain low rates going forward while continuing to

work in the best interests of policyholders, the province could consider

the levers at its disposal, such as introducing limited product reform

to cap benefits for minor injuries and adjusting the premium structure

to ensure equity among policyholders by driving-risk rating.

“This would require a bold change in policy direction, but the

results observed in other jurisdictions in terms of claims cost

reductions are compelling.”

The government had full notice about initiatives like this in

2014. I think in 2014 there was an opportunity to do a very significant

road safety initiative that we would be reaping the benefits of now, in

2018. But instead of that, these pages were cut out of the report before

it being disclosed to the public or to ICBC.

We are taking those steps now — four years later, unfortunately —

after more than $2 billion in losses at ICBC. If the member is wondering

where the idea came from, it was available to the previous government in

2014, and it was just as available to us when we sat down and stared a

$1 billion deficit in the face at ICBC.

M. Lee: I’m familiar with the statements of the Attorney General inside

this House and outside the House. I was not asking about where the idea

came from. I was asking about the 260 percent increase, what period of

time that relates to and the explanation around that.

Hon. D. Eby: That’s from the 2000 to 2016 period that was in the Ernst and

Young report that was waiting for me on my desk when I started

responsibility for this file.

I just noticed that we were joined by a school group. It might be

helpful for them to know that we’re talking about a bill in committee

stage. Members on the other side, in the opposition, are asking me

questions about it. I’ve got staff here to assist me in answering those

questions so that everyone in the House knows what they’re voting on and

understands it fully.

Madame Chair, here, will referee between us, and you’ll hear a

very vigorous discussion of car insurance this afternoon. I hope you

enjoy it.

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

increase?

Hon. D. Eby: According to that Ernst and Young report, minor injury…. They’re

called pain and suffering awards. This is a recognition by the court

that the person has been injured financially, giving them some award to

recognize that it’s a terrible thing to be injured by someone else’s

actions.

Those awards started at about $5,000 in 2000 and went up to about

$16,000 over the period. The cap on these rewards at $5,500 enables

government to say: “Yes, we still recognize that it’s a terrible thing

to be injured by someone else. But our focus is not going to be on a

pain and suffering award to recognize that. Our focus is going to be on

ensuring that you have access to benefits that will get you better —

that you have access to the full cost of physiotherapy, counselling,

acupuncture, all kinds of different benefits, the full cost of

that.”

Plus, we also want a system that is responsive so that you don’t

have to go through years of B.C. Supreme Court with multiple experts at

huge costs to the system that are driving up insurance rates for

everyone else.

This limit on the pain and suffering award is squarely directed at

this issue of the fact that these awards have gone up so dramatically in

such a short period of time.

M. Lee: What is the current average cost, then, in terms of a minor injury

claim? Is it $16,000 or some higher price?

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

little over $30,000.

M. Lee: By imposing a minor injury cap, then, in terms of pain and

suffering, just on the face of what was said, that’s an $11,000

difference. Where does the claimant get compensation for that

difference?

Hon. D. Eby: All accident victims will see an increase in benefits available to

them from health care professionals of various kinds.

In addition, they’ll have access to additional categories of care

provider that they didn’t previously have access to. People who are

catastrophically injured will have access to double the level of

lifetime benefit.

[1:50 p.m.]

Ratepayers, drivers, across British Columbia will, we hope, be

relieved of the burden of having to pay $400 each additional, per year,

in order to keep up with these escalating costs.

M. Lee: My colleague the member for Richmond-Steveston, before lunch

again, talked about what effectively is a $3,300 average increase in

benefit compensation that would be available for those 60,000 British

Columbians. That’s, again, a difference of $3,000. I’m still interested

in where the $11,000 of coverage would go for a claimant for pain and

suffering.

Hon. D. Eby: The member is conflating several different categories, and the

math is confusing at best.

The combined factors of getting minor injuries out of complicated,

lengthy, multiple-expert B.C. Supreme Courts and into the civil

resolution tribunal, putting a limit on the pain and suffering award —

not the out-of-pocket costs, but the pain and suffering award — for

people with minor injuries at $5,500….

The combined impact of those two initiatives results in two

things. One is sufficient resources to increase all the benefits that I

keep listing over and over, and the other is to get ICBC, hopefully,

back into the black, with, after paying for the increased benefits, $1

billion in savings.

If we did not take these actions and we just said, “Keep

everything as it is. We want it keep paying out these ever-increasing

pain and suffering awards. We want to go through the complicated B.C.

Supreme Court process. We want ratepayers to pay for all that,” we would

have to charge $400 per driver in increased premiums across

B.C.

I understand the idea that it would be good, would be great, to

keep these pain and suffering awards where they are, or even to increase

them, if we could give more money to people and there was no cost to

that, but there is a cost to that. There is a cost to the full B.C.

Supreme Court process and paying for all the experts and all these

things.

So we said: for minor injuries, let’s get them into a more

expedited process, with a much lower overhead. Let’s make sure that the

focus is on care, getting people better, paying for all their benefits,

paying for their out-of-pocket expenses. We’re going to reduce the pain

and suffering award. The benefit of that is: the huge, administrative

cost of this current system is so significant that we can cover people’s

wage loss, we can cover their full out-of-pocket expenses for all these

different categories, and there’s still $1 billion to get ICBC into the

black.

I saw the members vote against this bill at second reading, and I

wonder what they are voting for. Are they really saying that the current

system is one that they support? Are they really saying that we want

drivers to pay $400 each, extra, to preserve the current

system?

I think no matter how you look at it, ICBC losing $1 billion a

year is not a system that works. We have to figure it out somehow, and

this is the direction that we’re choosing.

M. Lee: As the Attorney General has indicated, of course, the finances of

ICBC, I’m sure, will be reviewed during estimates. There’ll be

opportunity to do that, and I appreciate the Attorney General ensuring

that that will be the case.

In terms of the $1 billion loss, as the Attorney General claims is

the case, that’s one thing. In terms of the savings that will be derived

from this new mechanism…. Just to recap, we’re talking about $1 billion

per year, plus $206 million, as we talked about, in terms of increased

benefits. Is that correct?

Hon. D. Eby: Yeah. The overall savings, after taking into account the increased

costs of the improved benefits, is about $1 billion,

projected.

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

benefits?

Hon. D. Eby: The projected savings include the cost of the additional benefits.

I think I’ve said that.

M. Lee: Back to the earlier point about the gap. I appreciate the math is

not that simple, but just from what I’m seeing, pain and suffering

clearly is being lowered from what would be an average of $16,000 to the

new cap of $5,500.

The Attorney General asks: “Why is it that our side of the House

is opposed to Bill 20?” It’s around the imposition of the minor-injury

cap. There are issues and concerns that we’ll be canvassing at length

here, not to mention the short period of time in which this has been on

the floor of the House. We are trying to gain a better understanding as

to the impact on minor-injury claimants that might result from the

imposition of this cap.

[1:55 p.m.]

Again, I’m just hearing, just from my simple understanding of the

math that is involved here, that we’re going from a $16,000 average to,

potentially, $5,500.

I’m not seeing the additional compensation for pain and suffering

for these claimants, other than potentially an additional $3,000 of

benefits on average. I appreciate that we’re dealing with averages here.

But I’m just focused, of course, on pain and suffering, which is what

this

section relates to.

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

J. Yap: Can the minister tell us how the $5,500 cap was arrived at and why

it would not be placed directly in the legislation — that

number?

Hon. D. Eby: Three provinces have no-fault insurance. They have zero for pain

and suffering awards for minor injuries. Alberta has a $5,020 limit on

pain and suffering awards. Prince Edward Island has a $7,545

pain-and-suffering award limit. New Brunswick has a $7,818 limit, and

Nova Scotia has an $8,486 limit.

B.C. is in the middle of the pack, exactly, between the provinces

that don’t give anything and Nova Scotia that has the highest cap. Every

single province has addressed this except for British Columbia, and

we’re right in the middle of the pack. It might help the members to know

that for every $1,000 increase in the cap limit above $4,000, potential

savings are reduced by approximately $30 million or roughly 1 percentage

point of premium rate.

J. Yap: I thank the minister for that. But I am wondering why the minister

did not set the cap to be closer in the range of Nova Scotia and New

Brunswick, $7,500 to $8,500.

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

afford it.

J. Yap: Why has the minister left the cap to five-year intervals for

review and not indexed to inflation like the other provinces?

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

review.

M. Lee: I know that the member for Richmond-Steveston has additional

questions about the $5,500, but I want to come back to the point that

was just made in terms of the comparison of our $5,500 proposed here in

British Columbia under this bill to other provinces.

Shouldn’t it be the situation, though…? Would the Attorney General

please respond to this question? In terms of…. Shouldn’t this cap really

be based on what we believe — if we’re going to put a cap on minor

injuries — the appropriate level should be, as opposed to…?

Because when we talk about what we can afford, there are a lot of

different things that can be done with ICBC, as we were trying to

canvass earlier and we will canvass further. In terms of talking about

the $5,500, I’d just like to ask the Attorney General: on what basis is

the $5,500 level being determined?

Hon. D. Eby: We’re learning from the experience of other jurisdictions who

capped this a long time ago, because they understood, like we understand

— unfortunately, like the previous government did not understand — that

these escalating and out-of-control costs for these types of awards were

not sustainable.

The only way to pay for these awards increasing the way they have

been is to increase premiums for drivers, which, by the way, the

previous government didn’t do either. The gap between premiums collected

and the escalating awards has now resulted in billion-dollar deficits of

ICBC. I do appreciate the member’s interest and, certainly, a shared

interest on my part. I’d like this award to be as high as

possible.

But what we’re trying to do here is strike a balance between

ensuring that people get the benefits that they need, that they’re not

out of pocket going to care providers, that they get their out-of-pocket

expenses covered for their wage loss, that the full tort system is

preserved for serious and catastrophic injuries and that we have a

system that can deliver ICBC that’s in the black and providing

affordable car insurance to British Columbians. That’s the balance that

we’re trying to strike.

[2:00 p.m.]

If the member has identified $1 billion in savings somewhere, I

would be very glad to hear him put those suggestions on the record this

afternoon, because we’ll pursue those too and cut rates even further.

I’d love to hear about that.

M. Lee: Well, the more we have this discussion, I…. We talk about balance.

It strikes me that we’re…. I appreciate that ICBC, at least in the eyes

of the government, needs to deal with what has been referred to as a

large loss situation, which, again, we will have the discussion about.

But in the instance of what’s being proposed here, it strikes me that

we’re talking about finding ways to increase savings on the backs of

claimants for pain and suffering.

If we’d like to have the $5,500 level, or whatever level is

appropriate for minor injury caps in this province, to be as high as

possible, to the extent that it’s lower than other provinces, is the

Attorney General suggesting that we’re not appropriately compensating

claimants for their pain and suffering as compared to other provinces in

this country?

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

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

to another question.

In terms of the other provinces in this country, what has the

experience been for these other provinces that have imposed a minor

injury cap in terms of the effect on premiums?

Hon. D. Eby: This report was waiting for me on my desk. It was commissioned by

the previous government. It recommended to the previous government a

full no-fault system. Just by way of background, so that the member

knows that this isn’t some NDP-cooked-up report of some kind…. I keep

hearing him suggest that the numbers around ICBC’s losses are somehow:

“the member claims” and “the member says” and “we’re going to examine

that.”

If the member thinks that we wiped $1 billion in income from ICBC

off the books just to make a point, I’d be startled by that suggestion.

We’d rather spend that $1 billion on programs for British Columbians,

instead of having it wiped off the books of the province. But I digress

a bit.

This report, which was commissioned by the previous government,

says as follows of jurisdictions that impose this: “Bodily injury loss

costs in these provinces continue to be lower than levels in 2000, with

decreases ranging from 10 percent to as much as nearly 60 percent in one

of the provinces. By comparison, B.C.’s bodily injury loss costs have

increased nearly 85 percent over the same period.”

What would the situation have been, had the government, in 2014,

not cut pages out of a report and instead looked at addressing the cost

drivers at ICBC?

M. Lee: Well, I acknowledge the Attorney General for quoting from that

report, but I was asking about what the experiences are in other

provinces. Given that we have knowledge and understanding as to how

minor injury caps have been brought in by other provinces, what has been

the impact, as a result, on premium rates?

Hon. D. Eby: “Bodily injury costs in these provinces continue to be lower than

levels in 2000, with decreases ranging from 10 percent to as much as

nearly 60 percent in one of the provinces. By comparison, B.C.’s bodily

injury loss costs have increased nearly 85 percent over the same

period.” So I would say, if the member wants a

summary, that their

experience was favourable compared to ours.

J. Yap: I’d like to explore with the minister who he consulted with

respect to the $5,500 number. Did the minister consult with Mothers

Against Drunk Driving?

Hon. D. Eby: I’m not aware of the position or the interest of Mothers Against

Drunk Driving in relation to this proposed legislation, but certainly

I’d be glad to have my staff reach out to them. I thank the member for

the suggestion.

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

[2:05 p.m.]

Hon. D. Eby: When we set the level, we looked at levels set in other provinces

to see what was fair. A number of provinces pay zero. We said: “That

doesn’t seem right.” We looked at the high end, which was Nova Scotia,

and then we looked at provinces that were more in the middle, like

Alberta and New Brunswick. We said: “What would be fair in the context

of what is paid across Canada, keeping in mind that each $1,000 beyond

$4,000 means that drivers have to pay 1 percent more in their car

insurance? Let’s try to come in the middle of the pack, about

$5,500.”

We want to recognize that someone has been injured, with the pain

and suffering award. We don’t want to go to zero like other

jurisdictions. We want to say: “You have suffered.” We want recognition

for that. But we don’t want, and this government will not tolerate,

endless insurance rate increases for pain and suffering awards that are

not connected to actual out-of-pocket expenses, that are not connected

to health care to help people get better. That is what this definition

in the bill is about, and that is why it is here.

J. Yap: I’ll take that as a no.

Did the minister consult with a surgeon of any kind?

Hon. D. Eby: The member knows we’ve been actively engaged with Doctors of B.C.

because I’ve talked about it a bunch of times. I’m not sure what the

expertise of Doctors of B.C. or surgeons would be in relation to pain

and suffering awards and their escalation in British Columbia over the

relevant period. It is recognition by the court in tort law that someone

has suffered a loss that is pain and suffering. “You have suffered, so

we’re going to provide you with this award to recognize it.”

The massive escalation in these awards from $5,000, at the start

of the period, to $16,000 to provide that recognition is not

sustainable. That is why a limit has been put on those types of awards

while increases for health care to get people better, to get them back —

increases for their out-of-pocket expenses, for their lifetime limit on

these types of benefits when they’re catastrophically injured…. That was

the balance that we aimed to strike.

M. Lee: I just wanted to ask, as a follow on to that question…. The

massive increase from $5,000 to $16,000. Can I ask the Attorney General:

what are the components of or the reasons for that increase?

Hon. D. Eby: These are driven by decisions by the courts. The escalation in

minor injury pain and suffering awards has been dramatically and

significantly different than the increase in pain and suffering awards

for catastrophic injuries.

M. Lee: With that being set, in terms of how that’s determined, beyond

$16,000…. Have there been other escalations beyond minor injuries, when

we go to the next level of injury type? Has there been a

recategorization of minor injuries into other types of

injuries?

Hon. D. Eby: The average bodily injury claim paid out for non-minor injury,

according to the Ernst and Young report, was $38,014 in 2000 and $48,078

in 2016, an increase of 26.5 percent. I think that provides the member

with the comparison point.

[2:10 p.m.]

Staff also note that British Columbia now pays out more for minor

injury claims than for serious injury claims or non–minor injury claims,

20 percent versus 17 percent respectively, and that we are an outlier in

doing so in Canada because of our system as it’s currently

constructed.

M. Lee: Just to clarify, the outlier is that we’re paying out somewhere

between 20 percent and 17 percent higher than other provinces? Is that

how I’m hearing this?

Hon. D. Eby: We’re an outlier in that more of our premium dollars for insurance

go to pay people with minor injuries than to people with non-minor

injuries.

M. Lee: Just in terms of minor injury claims themselves, has been there a

change in terms of how many are being classified as minor injuries

versus something that’s non-minor?

Hon. D. Eby: There’s no classification right now. This bill proposes to

establish that classification both by legislation and through

regulation-making power.

M. Lee: Just referring to the current situation in terms of looking at

costs, we’re talking about, historically, going from $5,000 to $16,000

and the increase in terms of non-minor injuries, the category that’s

gone from $38,000 to $48,000. I presume that that next category is the

next level, going outside of severity in terms of going from minor

injury to some other level of severity.

If that’s the case, I’m wondering, and I’m asking: has there been

an increase in minor injuries that are being viewed to be non-minor

injuries?

Hon. D. Eby: Non-minor injuries, according to the Ernst and Young report, are

everything else that is not a minor injury. I’m trying to get at the

member’s question here and provide a useful answer.

There was an issue where injuries that ICBC believed to be more

minor in nature and had assigned an apportioned value for those specific

files at a certain level…. They re-examined. Over a length of time, they

realized that they had not apportioned enough money to pay out those

claims as they are required to do in setting their projections. So their

costs were higher than they expected on some of these files. That may be

what the member is addressing.

Certainly, there has been, recently, a re-evaluation of various

files by ICBC based on projections of anticipated cost to ICBC, where

more minor injuries — as they initially presented, or as ICBC initially

understood them to be — were then revalued later.

It’s important to understand that when someone calls ICBC, and

they’re in an accident, and they initiate a claim, there may be a period

of radio silence for a year or more. They have up to two years to bring

a claim. This makes it very difficult for ICBC to track the claims, to

know what’s happening with the claims, what’s happening with the costs

during that period. They set an initial value of the claim when the file

is opened, but that number may be out of date, and it may not be an

accurate reflection of the actual cost of the claim.

If that’s what the member means, yes, ICBC has done a full file

review of older files to give us a concrete answer about exactly their

financial situation is. Maybe that’s what the member is addressing, but

it has nothing to do with this

part 7, “Minor Injuries,”

section.

M. Lee: I appreciate that. I believe that this line of inquiry is relevant

to this

section of the bill because we’re talking about minor injury

claims and how they’re determined, how they’re defined, the scope of it,

the extent, the dollar limits that government would make available in

terms of the minor injury cap, of course.

What the Attorney General is referring to is what I was wondering

about in terms of what we understand to be a reclassification. I think

it gives a sense to this House of the scope and nature of these types of

reclassifications. If I can ask the Attorney General: what was the

number of minor injury cases that were reclassified in this

manner?

Hon. D. Eby: There are three different minor injury terms that we’re bandying

about here, so it’s important to define our terms. First of all, there’s

the minor injury definition that’s in the legislation that’s in front of

us right now. Secondly, there’s the minor injury definition that was

used by Ernst and Young in identifying trends in the work that they did

for the previous government. The third is my description of what

happened at ICBC in relation to what initially appeared to be more minor

injuries, then becoming more serious. They’re all distinct.

[2:15 p.m.]

The statutory definition that’s in front of us is very specific

about what our intention is with respect to defining minor injuries. As

to the Ernst and Young definition, I have to say — with due respect to

the previous government and the terms of reference that were set out

there — it’s not quite as clear what they were using, about minor

injuries, but it’s still very useful for understanding the trend lines

around minor injuries and serious injuries.

With respect to what I was talking about, I was talking about

claims that initially presented and appeared to be a lower cost, then

ended up being a much higher cost for ICBC — a more minor or a smaller

claim in value becoming a more expensive claim because the person was

more severely injured. I hope that that clears things up for the

member.

As for institutional data about the number of claims that were

revalued, how significant that was, the total change in the appraisal of

those files, and so on, again, I would refer the member to

estimates.

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

just repeat the last part, if you could, please.

Hon. D. Eby: I was saying that I would encourage the member to pursue this in

estimates, because there are three different categories that we’re

talking about. The staff here are the experts in the legal definition

that’s in front of us here, and the staff that will be at estimates are

experts in the revaluation of files after ICBC did the review to ensure

that government had an actual understanding of their financial picture.

The number of files, the change in the anticipated cost to ICBC of those

files, all those things — we can canvass in estimates. I’ll have the

right staff there for that.

M. Lee: Well, thank you for that.

Let me just ask this, then, in terms of this discussion around the

reclassification of what ICBC had first evaluated to be a lower-cost

claim to now something that is having a higher-cost claim. In the

backdrop of considering minor injuries and how this will be assessed,

does the Attorney General believe that ICBC has the necessary capability

to determine this? Given that there was….

Again, we don’t know the exact number of claims that were

reclassified in this manner. It strikes me that the government is

proposing to define minor injuries — admittedly in a different way, as

the Attorney General has just outlined — the point being that we have a

situation where the government is saying to British Columbians that

claims of lesser amounts have been reclassified into larger amounts.

That’s having an impact, as I understand it, on this so-called

$1-billion-loss situation for ICBC.

I’d like to understand what level of confidence the Attorney

General has in ICBC’s ability to assess minor injury claims.

Hon. D. Eby: There are a number of safeguards in place, and we passed a bill

relating to one of them, which is on the civil resolution tribunal. If

someone has a dispute about whether or not their injury falls within the

statutory definition that’s in front of the House, they can go to the

civil resolution tribunal, with or without a lawyer, and dispute that.

They are welcome to do that. In fact, the system is set up to make it

easier, faster and more efficient than before, to resolve that type of

dispute.

It’s important for the member to understand that until this

definition passes, there is no such thing as a minor injury definition.

It doesn’t exist in law. It’s not used by ICBC. All injuries are treated

equally. The issue is the attempt to place a value on a file and to

understand how much that file is going to cost the corporation. That was

the issue previously.

Whether or not somebody fits within the statutory definition

that’s in front of us here today in the House is not a process that is

engaged in by adjusters or anybody else. With respect to a dispute that

someone might have with an ICBC adjuster about whether or not they have

a minor injury, there’s an independent dispute resolution process

through the civil resolution tribunal.

A. Weaver: I have a number of questions here. It will give the members

opposite a little break. I think we’re going to be canvassing

section 29

for a fair bit. They can compose their thoughts.

[2:20 p.m.]

I have four quick questions with respect to the issue of injuries

here.

Section 29 — in 101 here — defines three types of issues. One is

minor injury. It also defines permanent serious disfigurement and

serious impairment.

My understanding of these is, perhaps, consistent with the

minister’s, but I do note that there is an awful lot of confusion out

there, in the general realm, with respect to the intentions of the

minister with bringing in this legislation. So I’d like to pose a couple

of specific examples to determine whether or not they would be covered

under “minor injury” or whether, in fact, they would be eligible for

further litigation down the road.

The one that’s been the most common is the concern that’s

expressed with respect to psychological or psychiatric conditions. Now,

my understanding of this…. I’m hoping the minister can correct me if I’m

wrong.

Let us suppose we have two individuals. The first individual is in

a car crash. That first individual gets very depressed after the car

crash. It’s been declared by the medical practice that that depression

has arisen as a direct consequence of that car crash. It was a

depression-and-anxiety issue that responded well to medication, and six

months later the person bounced back and actually was able to continue

forward. That’s case 1. Person No. 2 is the same person who enters into

a much, much deeper depression, perhaps with PTSD, and a year and half

later they still have not been able to recover.

My question to the minister is: how would both of those

individuals be treated in light of the

definitions of “minor injury” and

“serious impairment”?

Hon. D. Eby: The second one is easier, in that it is definitely not within the

cap. On the first one, there is a definition of “minor injury” that has

two parts. The first part of the definition of “minor injury” is a

negative definition. It says that it’s an injury that “does not result

in a serious impairment or a permanent serious disfigurement.” So if it

results in a serious impairment and it’s a psychiatric injury, then it’s

out of the definition of “minor injury.”

If it doesn’t result in a serious impairment and it’s a

psychiatric injury or another type of injury that is within the second

part of the definition, then it would fall within the minor injury

definition. The other types of injuries are abrasions, contusions,

lacerations, sprains or strains, pain syndrome — we talked about a

psychological or psychiatric condition — or a prescribed injury or class

of injury captured in the regulations.

The question of whether or not it’s a serious impairment is also a

defined term. A “serious impairment” is an impairment that “(

a) is not

resolved within 12 months, or another prescribed period,” by regulation,

“if any, after the date of an accident, and (

b) meets prescribed

criteria,” by regulation. You’ll see there are two pieces to this, and

there is space, within regulation, for additional definition.

I’ve posted a paper on the Ministry of Attorney General website

about our intentions related to the “prescribed criteria” around “minor

injury.” It might assist the member to know that next week there is a

meeting with the Doctors of B.C. — the B.C. Psychological Association

has also been invited — to assist us in determining how the regulations

could narrow the psychological or psychiatric conditions even further

than is already the case for the current minor injury

scenario.

A. Weaver: Another two examples that I’d like to give. Let’s suppose that

there is somebody who was driving somewhat excessively over the speed

limit. Maybe they didn’t get caught, but there was some inkling that

that person was at fault. That person gets into an accident with two

cars. In the one car, you have an individual who has brain damage and

becomes a quadriplegic. They’re seeking pain and suffering, etc., and

also legal process, as a result of this.

[2:25 p.m.]

In the second person, you have a few broken bones that lead to

some chronic issues. Perhaps it’s a broken hip, and there are some

chronic pain issues that last beyond a year. They don’t just last a few

months. They last beyond a year. How would both of those be

treated?

Again, I’m seeking clarification for the purpose of communicating

the intent of this

section to a broader audience. How would both of

those individuals be treated under the classification of “minor injury”?

I suspect the brain damage and quadriplegic doesn’t apply, but perhaps

the broken bones, where you actually lead to a chronic condition that

lasts — say chronic hip arthritis or something — after an accident. If

the minister could expand on that.

Hon. D. Eby: No individuals with brain injuries or individuals with broken

bones are subject to the limit on pain and suffering awards or the minor

injury definition.

A. Weaver: Then let’s suppose the bone isn’t broken. In fact, you have a

sprain with a cut, and that cut gets infected. You get a flesh-eating

disease response that doesn’t leave you permanently disfigured, but it

leads to a substantive, long-term injury. That infection gets into your

bone. You get chronic arthritis. How would that person be treated in

this example?

Hon. D. Eby: If it meets the definition of “serious impairment” — so it’s

beyond 12 months and the prescribed conditions — then there would be no

cap. In addition, I guess it depends on the laceration that resulted in

the flesh-eating disease or the impact on the individual. A permanent,

serious disfigurement of the claimant would also remove it from the

minor injury definition.

A. Weaver: My final question. Let’s suppose you have a drunk driver who’s

driving along and runs into a number of people. Some people get serious

injuries that are very extensive, a couple of other people minor

injuries, as defined here, and one person has a psychological disorder

as a result. How would the issue of these three different classes of

people be treated under these

definitions when a drunk driver or

somebody texting was involved?

Hon. D. Eby: Each individual would be assessed based on their own injuries,

whether or not they fell within the definition of “minor injury” or

not.

As for the driver, anyone that was driving dangerously, there are

Criminal Code and Motor Vehicle Act provisions relating to that —

insurance consequences, potential jail time, and so on — that flow from

that, if they were engaging in dangerous conduct while they were driving

— drinking and driving, and so on.

J. Yap: I’d like to get back to who the minister consulted in coming to

the specific cap. I heard the minister say that the Doctors of B.C.

would be consulted soon. But in regards to the cap and the amount, did

the minister consult the B.C. Medical Association?

Hon. D. Eby: We had a huge number of stakeholder meetings. I remember the B.C.

Coalition of People with Disabilities, the injured motorcyclists

association, physiotherapists, individuals injured in car

accidents.

What I’d like to do is…. We don’t have a list right in front of

us, but I will endeavour to get the member a list of the groups that

participated in our stakeholder meetings where we discussed the

cap.

J. Yap: I appreciate that. Perhaps the minister might be able to answer

this. We look forward to the list with the comprehensive listing of

those consulted on capping and the potential amount. Would the minister

confirm for us that medical groups were consulted as part of this

consultation?

[2:30 p.m.]

Hon. D. Eby: I can advise the member that Doctors of B.C. has been involved in

our conversations from a very early stage. What I’d like to do is….

There were a number of groups that signed non-disclosure agreements

related to stakeholder engagements, so it might be that the member

thought we didn’t talk to anyone, and that may be why.

What I’ll do is I’ll endeavour to get the member a list of those

organizations as quickly as we can.

J. Yap: Thank you. I appreciate that.

With regard to the amount, $5,500, the minister has said that that

was arrived at after comparing to other jurisdictions and looking at

what could be done given the situation. So $5,500 is what the minister

has said it would be. Can the minister commit, since this amount can be

changed by regulation, that this amount will be the cap and it will not

go below this amount?

[R. Chouhan in the chair.]

Hon. D. Eby: This amount, $5,500, is the government’s intention. It will be

linked to inflation, so the number will only be going up from

there.

J. Yap: The minister had said a few times, earlier, that as a result of

these changes — I believe, primarily, the change to capping what will be

defined as minor injuries and the savings expected from that — there

would be a substantive financial savings to the corporation.

Can the minister confirm: is the $1 billion that he talked about

part of the savings from capping minor injuries?

Hon. D. Eby: It would be helpful for the member to think of the savings that

are projected as being a global number that’s connected to a couple of

things.

One is definitely a limit on pain and suffering awards, the

growing and escalating pain and suffering awards, to $5,500. The second

is the direction of minor injuries out of B.C. Supreme Court into a more

efficient tribunal process, at the civil resolution tribunal. The third

is the increase in benefits. Then, after all of those things happen, the

net savings are projected to be $1 billion for ICBC.

J. Yap: It sounds like the minister was provided with analyses or

modelling that showed the savings that could be achieved from some of

these proposals, including capping so-called minor injuries to be

defined and the increase in health benefits and the transfer of cases to

the tribunal.

Is that the case — that there was modelling or analyses that was

done on behalf of the minister?

Hon. D. Eby: I can assure the member that yes, there were projections done on

this. As far as the cap goes, the member can do his own projections and

understand that for every $1,000 in increase on the cap limit above

$4,000, the cost for each $1,000 increase is $30 million, or roughly 1

percentage point of insurance premium for British Columbians. So he can

do that as far as the impact of changes in the cap.

[2:35 p.m.]

J. Yap: Will the minister be able to, at the appropriate time, release the

modelling that was done that assisted in this decision?

Hon. D. Eby: It’s a bit challenging for us here, given that these are legal

staff and not actuarial staff or financial staff at ICBC.

What I am going to do is make sure that ICBC has the member’s

request for that, and at estimates, I’ll provide him with as much

information and paperwork as we feel we can around the modelling and the

projections for ICBC’s finances.

J. Yap: Earlier there was some discussion in regards to the savings

achieved around the country — other jurisdictions that have introduced

these. Can the minister tell the House, specifically, if caps have led

to lower insurance premiums in those jurisdictions?

Hon. D. Eby: I can tell the member that bodily injury costs in the provinces

that have capped minor injury claims continue to be lower than levels in

2000, with decreases ranging from 10 percent to as much as nearly 60

percent in one of the provinces. By comparison, B.C.’s bodily injury

loss costs, where there was no limit on minor injury pain and suffering

awards, have increased nearly 85 percent over the same

period.

J. Yap: In respect to administering this new system — when the legislation

is passed, and we now live in a world with the new definition of minor

injuries and the caps — how many additional staff or FTEs does the

minister expect, and the cost to deal with this?

Hon. D. Eby: I can provide a broad picture for the member, as I have, which is

that there will be a shift away from staff focused on litigation to

staff related to administration of claims. As far as specifics, I’d

appreciate if the member understood that having the staff that are

experts in ICBC’s human resources and financial picture at the estimates

process would be the best place to get into detail.

J. Yap: The minister has made reference to savings that would be achieved

from this move to caps on minor injuries and the other initiatives — the

tribunal, the providing increased health benefits. Will these savings

that would be achieved be shared with ICBC ratepayers?

Hon. D. Eby: Our goal is to avoid a $400-per-driver rate increase. The answer

is yes. If we’re successful, then we won’t have to do that. So the

savings will be shared in that way.

Beyond that, we hope to provide savings to good drivers through

our rate design program that we’re undertaking. That’s our goal in this

bill, in two parts. One is in the enabling piece around the rate design

process, and the other is in relation to this minor injury and the civil

resolution tribunal bill that has passed.

J. Yap: I appreciate the minister indulging me here. I’m hearing his

reference to avoiding a $400 increase. I’m sure he’s referring to an

average. But the minister’s also referred to the fact that bad drivers

should pay more and good drivers, pay less. Does he expect that

introducing these caps on minor injuries and all the other initiatives

could lead to a reduction in rates for good drivers?

[2:40 p.m.]

Hon. D. Eby: This bill reflects one part of the multiple initiatives that are

underway. We had a third-party business review of ICBC that projected

efficiencies inside the corporation, with $57 million as the potential

savings, that we currently are implementing.

We have road safety initiatives that we’re implementing to

decrease the number of accidents, especially those associated with

distracted driving. We have other initiatives related to dangerous

intersections, with our red-light cameras initiative.

All of these initiatives are aimed at reducing costs at ICBC. Our

goal, throughout this whole process, has been to avoid an astronomical

rate increase for British Columbians. The member is right — an average

of $400 per driver to close the gap between what’s being paid out and

what’s being taken in at ICBC. That’s our goal, and that’s what we’re

working towards.

J. Yap: So how can the minister be sure that these changes, after they’re

implemented, will not, in fact, lead to an increase in rates for British

Columbians?

Hon. D. Eby: Well, I can be sure that this isn’t going to lead to an increase

in costs for ICBC. These are all measures that are going to reduce some

very obvious cost drivers at ICBC. But given the stated intent of the

Trial Lawyer’s Association to challenge this legislation, to attempt to

get people around the cap, the behaviour of plaintiff counsel, it’s very

difficult to project accurate savings.

We do the best that we can to try to understand where this is

going to go, based on the experience of every other jurisdiction in

Canada that’s done this. We have an advantage in that we’re the last, if

I can put a happy face on what is a very unhappy situation. So we are

able to learn from the example of those other jurisdictions and try to

make our definition as comprehensive as possible and also ensure that it

doesn’t offend any constitutional prerogatives. We can do our best, and

that is what we’re doing.

In addition, we’re not entirely reliant on this. We have

initiatives within ICBC to reduce costs internally, a $57 million

initiative over at ICBC. We have initiatives around road

safety.

We have initiatives with material damage suppliers. Material

damage is automotive body repair shops. For example, we’re doing work on

windshield costs right now, where ICBC will no longer pay to replace

moldings that don’t need to be replaced and will not pay a cost beyond

the original manufacturer’s cost for replacing windshields.

These are initiatives that are underway. There are a number of

initiatives underway. We’re not reliant on any one initiative to get

ICBC back on track. It is a multi-pronged approach, because we know that

there will be a movement on all of these initiatives in both

directions.

J. Yap: I appreciate the minister listing a few of the many initiatives,

I’m sure, that are underway, which, coupled with the proposed cap on

minor injuries collectively will lead to savings. Let’s hypothetically

project and give the minister the benefit of the doubt that the savings

will be achieved. What does the government plan to do with these

savings?

Hon. D. Eby: Well, there has been a practice in the past of governments taking

money out of ICBC, which, in part, is why we’re here in this situation

today — $1 billion taken out of ICBC’s reserves by previous governments.

We will not be doing that. The money will be staying in ICBC.

If we find ourselves in the remarkable and fortunate situation of

ICBC being in a surplus situation, those savings will be returned to

drivers through reduced rates. I sure hope we find ourselves there. The

goal currently is to avoid astronomical rate increases for British

Columbians, and that’s where we’re trying to get.

I have a comprehensive answer for the member’s earlier question on

who was consulted with about the possibility of a cap and the potential

range of a cap.

[2:45 p.m.]

We consulted with Doctors of B.C., the Physiotherapy Association,

the Registered Massage Therapists of B.C., the Association of

Traditional Chinese Medicine, the B.C. Psychological Association, the

B.C. Association of Kinesiologists, the Canadian Association of

Occupational Therapists and the B.C. Association of Clinical

Counsellors, the B.C. Chiropractic Association, disability advocates,

the Association for Injured Motorcyclists, the Fraser Valley Brain

Injury Association, the Disability Alliance of B.C., the Rick Hansen

Institute, the Campbell River brain injury association, Brain Trust

Canada, the Planned Lifetime Advocacy Network, CONNECT, Brainstreams,

Spinal Cord Injury B.C. and the G.F. Strong Centre.

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

consulted about that.

J. Yap: I appreciate that listing of those consulted. I was listening

intently, but I did not hear that the nurses of British Columbia were

consulted. I’m wondering why.

Hon. D. Eby: Fair point. I’ll check with staff about that and see if we can

reach out to the nurses to see if they have some feedback for

us.

J. Yap: Getting back to the hoped-for savings that will be achieved from

all of these initiatives, the list which the minister shared with the

House, and the proposed cap on minor injuries to be defined. Can the

minister commit today — he used the word remarkable position — that if

we see those savings, those savings will be passed on to British

Columbians?

Hon. D. Eby: These days, that sounds a bit like counting chickens before

they’re even laid in an egg, let alone before they’re hatched. But I can

assure the member that government has absolutely no plans to do what the

previous government did, which was take money out of ICBC’s reserves.

The savings will be returned to drivers.

J. Yap: Can the minister tell us who created the

definitions for minor

injuries, which we see in the legislation? Was it his office, his

ministry, or ICBC?

Hon. D. Eby: This was drafted by Ministry of Attorney General legislative

drafters. The

definitions were created in consultation with other

jurisdictions that have similar caps on minor injuries, to identify

their experience. Consultation is not the right word — by looking at the

experience of other jurisdictions with similar

definitions.

It was done by Ministry of Attorney General staff and in

consultation with ICBC and actuaries at ICBC to ensure that the

definition, first of all, was appropriate, and second of all, achieved

the intended aims, which were savings for drivers in British

Columbia.

J. Yap: The minister referred earlier to the fact that, presently, no

definition exists for minor injury — certainly within ICBC. So this is

something really new. Did ICBC provide the government with input into

the legal definition of what should constitute a minor injury in British

Columbia?

Hon. D. Eby: Take this with a grain of salt, because these provinces may have

acted earlier. These may be revised

definitions. But at least as early

as 2004 for Alberta, 2010 for Nova Scotia, 2010 for Ontario, 2013 for

New Brunswick and 2014 for Prince Edward Island, there have been

definitions of minor injuries. So the most recent jurisdiction is four

years ago, according to those numbers. Staff are nodding that those were

appropriate years.

This isn’t something that’s new. Alberta’s had this in place for

14 years. We have lots of experience in those jurisdictions to draw

from. So I disagree with the member’s premise that this is something new

or innovative. This is something that was recommended in B.C. as early

as 2014, as we know of.

J. Yap: Does the minister not believe that this fairly broad definition of

what a minor injury is will create fear amongst victims that he, the

minister, or ICBC can arbitrarily overrule victims and medical

professionals?

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

[2:50 p.m.]

What I can advise the member is British Columbians can have

confidence, once these changes are implemented, that if they get in an

accident, they’ll actually get the cost of their out-of-pocket expense

for the physiotherapist they need, for the counsellor they need, for the

care they need; and something approaching reality for their lost wages,

something approaching reality for the expenses of being rendered

quadriplegic in a car accident.

I think it unfortunate that a number of people who were injured

before these reforms found out that their benefits were limited to

amounts set in 1993. If more British Columbians had known that, they

would have been very full of fear that they might be involved in an

accident where they would be reliant on these 1993-level benefits,

because they are not enough to get the care that is needed. I think

we’re actually moving to address this in a very serious way.

I can tell the member, also, that I get letters from British

Columbians across the province with very real concerns that they can’t

afford a significant increase in car insurance. They rely on their car

for work and for family commitments, and if there’s a significant

increase in the cost of their car insurance, they’re going to be in real

jeopardy.

I would say that that is definitely where the fear is, and I would

disagree very strongly with the member’s suggestion that somehow I’m

going to be responsible for administering these claims. People go to

their family physicians, to their existing care providers. That is the

evidence that will go in front of the civil resolution tribunal to

resolve disputes. Any dispute with ICBC won’t be resolved by me and my

office, with a big stack of injury claims. It will be resolved in front

of the civil resolution tribunal, an independent tribunal here in

British Columbia.

M. Lee: Just as a follow-up to that response, just to clarify again. When

we were talking earlier today about the benefits side, it’s the $6

million increase, what the Attorney General described in terms of those

who need to have greater than $150,000 of lifetime benefit coverage —

those who are quadriplegic, unfortunately, from an accident, for

example.

In terms of the other benefits, we understood that the actual

increase from that is $200 million. Has the Attorney General considered

just putting in place what I think, generally, we would support — the

increase in benefits, in the way that has been proposed, and not

imposing a minor injury cap?

Hon. D. Eby: It’s a frustrating question, because it means the member has not

been listening or paying attention to the news or has any understanding

of ICBC’s financial situation. I cannot believe that that’s the case, so

that’s why it’s a frustrating question.

The member surely knows that ICBC’s in financial trouble. If he

doesn’t, he can just check with the member down the way from him, the

former Finance Minister, about the situation in ICBC. ICBC is in a very

dire financial situation — $1 billion losses.

To suggest that, without addressing the underlying fundamentals

that are driving these massive losses at ICBC, we would then increase

benefits, which would actually increase that deficit even further,

without taking the necessary steps to say: “Look, these pain and

suffering awards are getting out of control….” We’ve got to focus on

getting people better. We’ve got to focus on getting these claims out of

multi-year processes in B.C. Supreme Court with multiple experts for

minor injury. We’ve got to have a proportionate system.

I mean, the basis of the question is so disconnected from the

reality of the situation that it’s very difficult to respond to

it.

M. Lee: Well, we’ve been having a great conversation throughout the life

of the committee on this particular bill, and at various junctures, my

colleague the member for Richmond-Steveston and I have been asking

questions which are, in many cases, relating to the financials of ICBC —

the costing and the savings — and in particular, what we were talking

about an hour ago, in terms of the reclassification of lower claims to

higher-value claims.

We are hamstrung in this committee process without the benefit of

a full understanding. I’m clearly aware of what the government has been

saying for the last nine months, and as we just heard, the Attorney

General, through the ministry responsible for ICBC, is considering other

product reform.

I’m merely asking the question: given my concern regarding ICBC’s

capacity to assess minor injuries, has it been a consideration, when we

talk about benefits, separating out the benefit of increasing benefits

for claimants from a minor injury cap? That is merely what I’m

asking.

[2:55 p.m.]

Hon. D. Eby: I’ll give the member the benefit of the doubt and say I don’t

consider the 1993 benefit levels implement being delivered in 2018 to be

any less of a deficit at ICBC than the $1 billion operating deficit. It

is just as much a deficit. It absolutely needs to be addressed just as

much as the $1 billion deficit. But if the core of the member’s question

is, “Can you increase these benefits without doing these other reforms?”

the simple answer is no, and that’s that.

J. Yap: I’d like to continue where I was, talking to the minister in terms

of…. We talked about the list, and I appreciate that he will provide

that. Now I’d like to go back to when the bill was first introduced, on

April 24. The minister said, when he introduced this bill: “We couldn’t

have done it without the assistance of ICBC.” He went on to say: “They

were instrumental in the process.” How was ICBC instrumental in the

process?

Hon. D. Eby: I think it’s instructive to recall that when the previous

government did a business audit of ICBC in 2014, they cut seven pages

out before providing it to ICBC. Why would they do that? It’s a good

question. I don’t know the answer to it.

What I know is that there are a number of very talented people at

ICBC, very thoughtful people that, for a while, in my opinion, knew that

there was very serious trouble at ICBC, and the public in British

Columbia did not know that. I am very grateful to the people at ICBC who

have worked with Ministry of Attorney General staff and my office in

assisting us in modelling different scenarios, assisting us in

understanding the implications of different policy changes, because they

have the data, because they have the systems, and so on.

Inherent in the member’s question is a lack of trust in ICBC —

that they’re trying to pull a fast one. I don’t want to put words in the

member’s mouth. When the member says that, that’s what I hear. Just to

address that. In terms of the finances, I am as concerned as anyone who

said: “Oh my god. How can it be that before the election, the projected

deficit at ICBC was $11 million” — they were projected to make a profit

this year, if you can believe that — “and then, all of a sudden, they’re

losing $1 billion? How does that happen?”

I asked that exact question myself, and ICBC provided some insight

about how that happened. I said: “You know what? We need to have a

review of how that happened.” So we brought in a third-party business

firm, PwC, to do a review of ICBC’s projections of the numbers. I then

said: “Well, they’re actually the auditors of ICBC, so we need someone

that’s even independent of that.” We have another review of that

financial review happening.

I can tell the member the unhappy news, which was very unhappy to

me when it was delivered to me. The loss is real. The loss on the books,

which means dollar-for-dollar it comes off of social programs for

British Columbians, of $900 million last fiscal period and $1.2 billion

projected for this fiscal period is real.

It is unhappy news, but I am grateful for the assistance of ICBC

in helping us understand the consequences of the proposals that we’re

bringing forward here to reform insurance to ensure that we can actually

deliver two things. One is a financially stable ICBC that can deliver

affordable insurance to British Columbians. The second is an ICBC that

can deliver benefits to British Columbians at levels that we deem, as a

government, to be appropriate for people’s injuries. The third is to

deliver timely justice for people that are involved in a collision so

they can get on with their lives.

We had a number of priorities here. I think we’re achieving them.

I’ll say it again. We couldn’t have done it without the assistance of

ICBC. But to the member’s question and the implication in it, we were

not dependent on it, and we continue to scrutinize ICBC’s operations,

including with a third-party business review that identified $57 million

in savings inside of ICBC.

J. Yap: Can the minister confirm if ICBC also assisted in the creation of

the definition of “minor injury”?

[3:00 p.m.]

Hon. D. Eby: There are three people sitting with me here. You have the

executive director of Crowns from the Ministry of Attorney General, you

have counsel from the Ministry of Attorney General, and you have the

chief legal officer for ICBC. They are assisting me in answering the

members’ questions, and I’m here as well.

This is an accurate reflection of the team effort of putting this

together: technical assistance and actuarial information from ICBC,

legal expertise and knowledge from Ministry of Attorney General, and

organizational project management experience from the executive director

of Crowns and Crown agencies. This is a reflection of how the bill was

prepared. And of course, I’m here too.

J. Yap: With that, can the minister share with the House the intention of

the wording in the bill — “an injury in a prescribed…class of injury,”

even if “chronic.” What injuries would fall under this

definition?

Hon. D. Eby: In 2015, there was a case in Alberta called McLean v.

Parmar . The reference is A.J. No. 214 Alberta Court of Queen’s

Bench. In that case, the court found that pain lasting longer than three

months was defined as “chronic pain” and was therefore no longer in

Alberta’s definition.

Alberta had a similar issue in relation to something called TMJ,

which is a joint issue in the jaw, which was not contained in their

definition. The combination of the 2012 case related to TMJ — which made

Alberta become the capital for TMJ injuries in North America — and the

definition of “chronic pain” as “any pain lasting longer than three

months” meant that their definition of “minor injury” and the intent

behind establishing it was badly compromised.

They weren’t able to achieve the goal that we have here as well,

which is to reduce the process around more minor injuries and to put a

limit on escalating pain and suffering awards — not out-of-pocket

awards, not health care costs, but on these pain and suffering

awards.

Our intent was to learn from Alberta’s example, what they’d seen

in their jurisdiction, so that we didn’t face the same issue. That is

why the member finds that definition in relation to chronic pain. It’s

important to note, though, that there is a very specific “serious

impairment” definition that kicks serious ongoing injuries out of the

minor injury definition, including chronic pain if it meets the “serious

impairment” definition, is not resolved within 12 months and has that

significant impact on people’s daily activities.

M. Lee: I appreciate the reference to the Alberta case. How has Alberta

changed this legislation in view of that case?

Hon. D. Eby: They haven’t. But, you know, there are advocates out there who

say: “Enough with ICBC. We should privatize car insurance in British

Columbia.” I tell them that even if they’re enthusiasts for

privatization, the first thing that would happen — that the private

insurance companies would do in British Columbia…. They’d show up at the

door of the minister responsible for insurance law in B.C., and they’d

ask for these reforms that are happening here. Because they know, like

we know, that it’s not sustainable the way the system is going right

now.

I say that because although Alberta has not changed their law,

they are being lobbied by one of the federal insurance lobby groups to

update their definition to include these conditions because of the

erosion in savings that were intended by having a minor injury stream in

that province as well.

[3:05 p.m.]

M. Lee: Just coming back to the word “chronic,” that, at the outset of

this definition, is one of the key thresholds. Just going at the word

“chronic,” though, doesn’t that suggest something that could likely last

more than 12 months?

Hon. D. Eby: The issue is whether it results in serious impairment that lasts

for longer than 12 months. If it does, then it’s not a minor

injury.

M. Lee: I’m only suggesting that there are words in the minor injury

definition that, just from the outset, suggest to individuals who have

certain types of injuries as the result of an accident that they don’t

have a minor injury, or that they do have a minor injury but something

that could potentially last more than 12 months. Some chronic condition

— by definition, I would have thought — is a condition that could last

more than 12 months.

Hon. D. Eby: Yes, it could.

J. Yap: Getting back to the definition — and I appreciate the minister’s

response earlier — does the minister not think that this wording is

somewhat vague?

Hon. D. Eby: This is the most comprehensive definition of minor injury in the

country. There are additional portions that are left to regulation

because we recognized the experience in other jurisdictions where their

definition has been eroded. They forgot to include a jaw strain in their

definition, which caused the entire claim to be kicked out of the minor

injury regime in Alberta. We have a regulation-making power here that

allows us to update in order to ensure that the definition and the

intent behind the minor injury

section is achieved.

J. Yap: I wonder: does the minister not believe that it gives a lot of

latitude to ICBC to determine what is minor and what is

major?

Hon. D. Eby: The regulations are set by the Lieutenant-Governor-in-Council,

which is cabinet, not by ICBC.

J. Yap: I understand that, but ICBC will be — on behalf of the province,

on behalf of the executive council — out on the front lines working with

claimants and having to make that determination. Does it not give those

making the determination, ICBC, the latitude to determine what is minor

and what is major?

Hon. D. Eby: The situation today is that ICBC adjusters evaluate claims and

make determinations about the value of claims. Any dispute about that

goes to B.C. Supreme Court, a multi-year process, in many cases, with

multiple experts on both sides — a very expensive process.

We’ve said that minor injuries, instead, where there’s a dispute,

now don’t go to B.C. Supreme Court. You go to the civil resolution

tribunal, which will be faster and more efficient. The intent behind

that is to realize some savings in the process and administration. We

think that that will be an effective dispute resolution system for when

people disagree with an ICBC adjuster about the value of their claim,

whether or not it’s a minor injury or accident benefits that they

believe they’re entitled to but they’re not receiving.

J. Yap: What’s the minister’s intent? What is the minister trying to do

with this wording, which I referred to earlier: an injury in a

prescribed class of injury, even if chronic?

Hon. D. Eby: In Alberta, there was a court case where somebody sued and said

that they had pain that lasted for longer than three months. The court

agreed with their submission that because the pain lasted for longer

than three months, it was chronic pain. Because it was chronic pain, it

was not in the definition of minor injury, and therefore the definition

of minor injury and the intent of the Alberta Legislature in restricting

process and pain and suffering awards around minor injuries was

circumvented.

[3:10 p.m.]

Our intent here was to say that if you have chronic pain that

results in a serious impairment, then that is not a minor injury. If you

have chronic pain that does not result in serious impairment, then that,

in combination with the definition of minor injury, may mean that you

are subject to the minor injury process, which is the civil resolution

tribunal.

There is a limit on the pain and suffering award but not a limit

on the amount that you are able to recover for treatment to get better —

physiotherapy, acupuncture, whatever it may be that will help you deal

with your chronic pain. You’ll have access to additional benefits, a

larger lifetime benefit, greater benefits for your lost

wages.

I hope that helps the member understand why that’s there and what

the intent is in relation to the words “chronic pain.”

M. Lee: Just in terms of chronic pain, what is the AG Ministry’s view on

how long chronic pain syndrome typically lasts?

Hon. D. Eby: The issue that we face is that injuries manifest differently for

different people. So pain syndrome and pain syndromes…. Not being a

doctor and not having any doctors with me here in the Legislature right

now, I can advise the member that it will be a case-by-case

determination about whether the person’s pain syndrome results in

serious impairment in terms of the minor injury definition.

M. Lee: When we go into “serious impairment” and match that up against

pain syndrome then…. Perhaps we can just walk through that. There will

be “prescribed criteria.” Are those prescribed criteria specific to an

individual or a class of individuals?

Hon. D. Eby: The serious impairment relates to work, school, usual daily

activities and a substantial interference with the individual’s ability

to perform those daily tasks. We set that out in a paper on the Ministry

of Attorney General website to respond to exactly the concern the member

is raising about: “Okay, it says here it ‘meets prescribed criteria.’

What is that?”

The serious impairment evaluation is part of the definition of

minor injury. It determines whether or not you fall within this

category. That’s the import of it and the intent of government in

relation to those prescribed criteria.

M. Lee: Just coming back at this, then. In terms of the “12 months, or

another prescribed period” reference, why 12 months in the case of

chronic pain syndrome?

Hon. D. Eby: The member will note that the definition of “serious impairment”

in subsection (

a) has “or another prescribed period.” So if for a

particular type of injury or pain syndrome or something else, we find

that 12 months is inappropriate, it could be modified to have a more

appropriate time period, given what’s happening on the ground. There is

flexibility here in the definition to be responsive to what’s

happening.

J. Yap: Does the minister not think that by adding this sort of wording,

these sweeping powers, he is perhaps treating everyone like they’re

gaming the system and punishing those who are injured?

Hon. D. Eby: No, I flatly reject the member’s suggestion. Both in the terms of

his question and in the idea that there are sweeping powers and on and

on, I reject the whole thing.

J. Yap: Can the minister tell us why he included chronic psychological or

psychiatric conditions as minor injuries, putting B.C. as the only

jurisdiction to do this?

[3:15 p.m.]

Hon. D. Eby: Some psychological injuries are minor, and some fall outside the

minor injury definition. It depends on the impact on the individual and

the psychological injury. That’s why there is a definition here that is

two parts — that the injury “does not result in a serious impairment”

and “is one of the following” — and “serious impairment” is defined as

well. So it depends on the injury.

M. Lee: Just working through that, then. When the initial claim occurs and

there has been a determination that there is a minor injury — that it’s

not non-minor, that it involves a psychological or psychiatric condition

— but subsequent to that, there is a determination that there has been a

serious impairment, is the Attorney General not concerned about the

stigma, the consideration of the individual involved, for that first

12-month period, where they’re suffering from a psychological or

psychiatric condition but it hasn’t yet gotten to the stage of being a

serious impairment?

Is that how we’re treating people who suffer from a mental injury

and have a psychological or psychiatric condition over the first 12

months? Is that the intention of this government?

Hon. D. Eby: Imagine a situation where someone is in an accident and it results

in a serious psychological or psychiatric condition. They are seriously

impaired. They meet the definition of “serious impairment.” Nobody is

telling that person that they are not seriously impaired or that they

have a minor injury.

At that point, it’s just uncertain. If it resolves within 12

months, then it would be considered a more minor injury — devastating

for the individual, but a more minor injury. If it doesn’t resolve

within 12 months, then it is kicked out of the minor injury

definition.

It’s important to know that under the reforms, the person in that

situation would be receiving additional benefits that were not

previously available — namely, counselling. An individual that is in a

single-car accident that results in a serious psychological or

psychiatric condition currently does not have access to counselling as a

paid service. After these reforms, they will have access to

counselling.

In fact, the reforms that we’re proposing recognize that people

need access to counselling sometimes, after an accident, to deal with

the psychological injury. There is no suggestion that it is a minor

injury or that it falls within the minor injury definition until it’s

clear about whether or not it’s resolved within 12 months.

M. Lee: Having said that, it is putting on the same level a psychological

and psychiatric condition as being a minor injury — versus a broken toe,

another broken bone, which is not a minor injury. Is the government not

concerned about the signal in the way that that treats people who have

those sorts of psychological conditions?

Hon. D. Eby: It might reassure the member to know something that I said before,

which is that we’re currently consulting with the medical community

about narrowing that definition, by regulation, to ensure that it

reflects appropriately the medical community’s understanding of what

should and shouldn’t be captured.

M. Lee: I appreciate that. To the Attorney General: you mentioned earlier

that there were various groups that had been consulted in the list. One

of them, I believe, was the B.C. Psychological Association. Have there

been others in the initial consultation process that have made comment

on this inclusion of this condition?

Hon. D. Eby: We’re engaging in those consultations right now in relation to

refining the definition of “a psychological or psychiatric condition”

for the purposes of the minor injury definition.

J. Yap: Can the minister tell us what changed from February 6, when his

own news release stated: “The new legal definition will include things

like sprains, strains, mild whiplash, cuts and bruises, anxiety and

stress from a crash. It does not include broken bones, brain injuries,

concussions or other more serious impairments.”

[3:20 p.m.]

Why did this list change on April 24? It changed to this.

“Abrasions, contusions, lacerations, sprains and strains, pain syndrome,

psychological and psychiatric conditions or an injury in a prescribed

class of injury, even if chronic,” while adding the terms “will be

further defined in regulation over the coming months.” Can the minister

explain the discrepancy?

Hon. D. Eby: Sure. I’ll point out the obvious, that one’s a news release and

one is the statute. Aside from the obvious, I assume that the

member….

We’re following on the discussion about psychological or

psychiatric conditions. Anxiety and stress, as were included in the

original press release, are examples of psychological or psychiatric

conditions that have been considered by courts previously in relation to

injury claims.

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

suggesting.

J. Yap: Does the definition of minor injury include tears? If the tear

cannot be seen or diagnosed right away, how would the minister and ICBC

handle this?

Hon. D. Eby: I wonder if the member could provide some clarification about what

exactly he’s referring to. If it’s an abrasion, a contusion, a

laceration, a sprain or a strain, then the question would be whether or

not it results in serious impairment. Beyond that, the member’s welcome

to provide additional clarification for us about what he means by a

tear.

J. Yap: Sure. If someone tears a labrum or an ACL as a result of a crash,

will they be treated as minor injuries?

Hon. D. Eby: Its intention, with respect to sprains and strains, which I think

is what the member is talking about, is an injury to one or more tendons

or to one or more ligaments, or to both tendons and ligaments, including

TMJ — that jaw injury I was telling you about — but excludes

third-degree sprains, where all tendon fibres are torn away, requiring

surgical intervention.

That’s where we’re headed. Maybe that’s what the member is talking

about, in terms of tears. If it requires that surgical intervention

because all the muscle fibres are torn, then that is not what we’re

talking about here in the minor-injury definition.

J. Yap: Can the minister tell us if he has spoken with psychiatrists and

psychologists regarding the inclusion of those conditions within the

minor cap?

Hon. D. Eby: No, we wouldn’t talk to them about tears, if that’s what the

member’s asking. If he’s asking about whether we’re consulting with them

about psychological or psychiatric conditions, I think I’ve answered

that a few times now. We have meetings, in fact, this week with Doctors

of B.C., to which the B.C. Psychological Association has also been

invited in terms of setting the regulations for that area.

J. Yap: Can the minister walk us through what he had in mind when

including these afflictions under the minor cap? I mean the

psychological and psychiatric.

Hon. D. Eby: I’ve answered that question a few times. There’s case law out of

Alberta. There’s the concern, as the member cited from my own press

release, around anxiety and stress resulting from a crash. These are

some of the examples of what we were hoping to identify here in the

minor-injury category.

J. Yap: This government has stated that mental health is a priority, but

if I were looking at the

definitions included in this bill, I would

think otherwise. How can the minister square that circle for the

public?

Hon. D. Eby: Under the previous administration, if you were in a car accident

and you were suffering anxiety and stress from a car accident, you would

not have access — or any other psychiatric or psychological condition —

if you were in

part 7 benefits, to a counsellor.

[3:25 p.m.]

The simple reform of providing accident benefits, to individuals,

of counsellors, in

part 7, is an indication that we take this seriously,

that we think people need access to the resources they need to get

better and that we will provide those resources to them to ensure they

get better. It doesn’t matter whether their injury is physical or

psychological.

M. Lee: Just in saying that, just to clarify again, we were speaking

earlier about minor injury, including “a psychological or psychiatric

condition.” For the first 12-month period — before we reach the timeline

on “serious impairment,” where it’s not resolved in the 12 months — just

to confirm: that individual would still be treated as if they had a

minor injury. Is that correct?

Hon. D. Eby: They would be treated the exact same as anybody else with an

injury. You only settle your claim once. If you had a serious

impairment, you wouldn’t be settling it within the first 12 months,

because there’d be a determination about whether it fell into the minor

injury definition or not.

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

impairment?

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

months.

J. Yap: Getting back to psychological and psychiatric conditions, does the

minister believe that depression is minor? Does he believe that anxiety

is minor? Does he believe that PTSD is minor?

Hon. D. Eby: These are all very serious conditions, hon. Chair. So the question

that we ask in the minor injury definition is: does this psychological

or psychiatric condition result in serious impairment or not? That’s

what we’re looking at. I hope that assists the member.

J. Yap: What psychological conditions does the minister think should be

classified as minor?

Hon. D. Eby: I think it’s important to recognize that the question is whether

or not the injury — whether it’s a physical or a psychological injury —

results in serious impairment.

I accept the member’s suggestion that you could restrict this

definition by saying: “These particular conditions are in, and these

particular conditions are out.” You could also limit it by saying:

“Okay, if it lasts a certain period of time, as far as psychological or

psychiatric conditions, then that is considered not a minor

injury.”

There are a number of ways to do it. We’re increasing in

consultation right now with the Doctors of B.C. next week — and the B.C.

Psychological Association is invited, as well — to assist us in ensuring

that the definition reflects what we intend to achieve.

J. Yap: What about psychiatric conditions? What psychiatric conditions

does the minister think should be classified as minor?

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

J. Yap: I wonder if the minister sees the irony in the fact that his

government has made mental health a top priority, with a complete

ministry — I’m glad to see the minister is here in the House — yet he

has, with this definition, defined psychological and psychiatric

injuries as, potentially, minor.

Hon. D. Eby: I do see some irony here, hon. Chair. I see a lot of irony here

today, but that is not an example of the irony that I see.

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

stress disorder?

Hon. D. Eby: This is a species of the same question that the member has been

asking now for the third time. The answer is the same.

[3:30 p.m.]

We’re consulting with Doctors of B.C. this week, around ensuring

that we have an appropriate set of regulations around psychological or

psychiatric conditions. We’ve invited the B.C. Psychological Association

as well. Regardless, whatever the physical or psychological condition

is, it would be a question of serious impairment or not: is the person

seriously impaired by the condition, or not?

J. Yap: How will the government address other delayed-onset psychological

and psychiatric disorders?

Hon. D. Eby: What we’re doing is we’re consulting with the Doctors of British

Columbia, as soon as this week, and ensuring that we have appropriate

regulations relating to psychological or psychiatric conditions. I think

it’s appropriate to be relying on this expert advice.

J. Yap: How will the government consider anxiety experienced solely while

driving? Will this only be considered as major if they require driving

as part of their daily duties?

Hon. D. Eby: Regardless of the regulations, if you’re not able to work, that

falls within the category of serious impairment.

J. Yap: Has the minister or ICBC considered the cost to the health care

system should costs for psychological or psychiatric impairments not be

covered under the cap, should the government deem them minor?

Hon. D. Eby: Absolutely, we consider that. That is why, for the first time,

we’re including counselling as one of the services available to people

covered by car insurance — counselling for people who suffer

psychological or psychiatric conditions as a result of a car accident —

not just a portion of the cost but the actual market, out-of-pocket cost

of counselling in order to deal with psychological or psychiatric

conditions. It’s totally appropriate that the car insurance system cover

these kinds of psychological injuries, something that did not happen

until these reforms that we’re about to implement here.

[L. Reid in the chair.]

J. Yap: I thank the minister for that. I’m curious how psychological and

psychiatric injuries came to be placed under minor injuries, noting the

work that’s been done by the WHO indicating the loss of productivity to

disability and premature death from these conditions. It’s greater in

Canada than cardiovascular disease.

Hon. D. Eby: I’m trying hard not to be repetitive. Someone has an accident, and

then they have generalized anxiety and stress resulting from the

accident. That injury alone, which they suffered as a result of the

accident, would be sufficient to put them outside the definition of

minor injury and to get them outside of this whole effort by government

to stream more minor injuries into a simplified process and to put a

limit on pain and suffering awards — undermining a number of initiatives

we have to increase benefits and reduce costs and provide more

affordable car insurance. That is how this ended up in here.

I’ve advised the member five or six times now that we are

consulting with the Doctors of B.C. next week, and we’ve invited the

B.C. Psychological Association to ensure that the regulations reflect

our intention here, which is not to capture serious impairment in terms

of psychiatric or psychological conditions.

J. Yap: Can the minister tell the House what modelling or work has been

done to ensure that those with psychological or psychiatric impairments

would be covered? And can he commit to ensuring they will be fully

covered?

Hon. D. Eby: The member is going to have to be clear about what he means by

fully covered. For the first time in British Columbia, in

part 7

benefits under ICBC, people with psychological or psychiatric conditions

as a result of an accident will have access to counselling as an

accident benefit. That is, yes, for the first time in B.C. Other than

that, I’m not sure how much clearer I can be for the member.

[3:35 p.m.]

J. Yap: Did the Minister of Mental Health and Addictions or her ministry

staff have any input when this definition was decided?

Hon. D. Eby: We’re consulting with the Doctors of B.C., and we’ve invited the

B.C. Psychological Association to consult on these

regulations.

J. Yap: I’ll take that as a no. Will the minister have future input when

the

definitions are narrowed or changed?

Hon. D. Eby: Any regulations under this act are passed by cabinet. All cabinet

ministers have an opportunity to discuss regulations in the cabinet

process.

J. Yap: What message does the minister think this definition sends to

those suffering in silence with mental health afflictions, knowing that

their government just defined mental health afflictions as potentially

minor injuries?

Hon. D. Eby: The member’s question ignores the answers that I’ve provided to

him on the past 15 questions.

J. Yap: Would the minister consider using some of his extraordinary powers

in regulation to exclude psychological and psychiatric conditions from

minor injuries?

Hon. D. Eby: I explained to the member why the definition is in there. Someone

suffering generalized anxiety and stress resulting from a car accident….

That injury visited on them by the car accident would be sufficient to

get them out of the definition of “minor injury.” It would completely

undermine the intent of government here, which is to get more minor

injuries into a simplified process at the civil resolution tribunal, to

get the cost of administering the incredibly expensive and lengthy B.C.

Supreme Court process under control and to address escalating pain and

suffering awards for these types of injuries.

It facilitates two things. One is financial solvency and

self-sufficiency at ICBC in delivering affordable insurance rates. The

second is to really ensure that benefits for people who are injured in

accidents are sufficient to actually cover their expenses when they’re

seeking treatment to get better.

J. Yap: Can the minister tell us why he included chronic pain syndrome as

a potential minor injury, making B.C. the only jurisdiction to do

this?

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

out of Alberta.

J. Yap: Earlier the minister talked about or referred to TMJ pain, which

is a condition involving the jaw muscles, I believe. Is the minister

aware that TMJ has a number of long-term problems associated with it

that could lead to greater pain and suffering on top of higher medical

bills in the future, including increased risk of rheumatoid arthritis,

osteoarthritis, jaw injuries, long-term or chronic grinding or clenching

of teeth?

Hon. D. Eby: The reason that TMJ will be included in the definition is the

experience in Alberta. They did not include it in their minor injury

definition, and they became the North American headquarters for TMJ

injuries and expertise in front of the courts. It’s not a sustainable

situation in terms of insurance costs. Whether it’s TMJ, a pain

syndrome, a psychological or psychiatric condition or any other injury

that could be more serious over time or have additional consequences,

the question is always: is it a serious impairment? If it is a serious

impairment, then it is not a minor injury. It doesn’t matter whether

it’s TMJ or anything else. The question is: is it a serious

impairment?

M. Lee: Again, we come back to serious impairment. That suggests, of

course, that anyone who has suffered from a pain syndrome or a

psychological or psychiatric condition at the outset, immediately

following an accident, is going to need to wait out the one-year period

before they resolve their claim.

[3:40 p.m.]

Hon. D. Eby: It’s easy to imagine a scenario where someone receives an injury,

whatever the type, that might otherwise be categorized, here in

subsection 101(b), under “minor injury,” but it’s obvious from the

assessment by that individual’s physician or by their psychiatrist or

psychologist that this is not going to resolve within 12 months, and

it’s causing serious impairment. There’s no need to wait. The matter

could be resolved. The claim could be settled as being not in the minor

injury regime.

M. Lee: I appreciate that there certainly will be circumstances where it’s

very clear that an individual has, unfortunately, suffered a serious

impairment or permanent, serious disfigurement. But for those other

accidents, where it’s not entirely clear at the beginning of this that

there might be some pain or discomfort that lingers and prolongs

itself….

For situations where we, again, come back in front of something

that might appear to be minor at the beginning of this process and is by

definition…. As a claimant goes through their process with ICBC and is

being told that “you have a pain syndrome,” which typically, on its

face, presents itself as a minor injury, is there not a concern for

individuals who may be of low income, or others who don’t understand the

process because they’re either new immigrants or others who need that

kind of assistance? Is there not a concern here, with the wide-sweeping

nature of this definition, that claimants will be prejudiced in terms of

their abilities to want to accept a claim because of financial reasons

earlier in the process and not wait the 12 months? Is there not a

concern that this definition, the way it’s working, will basically put

at a disadvantage people who are low-income or are new immigrants to

this country?

Hon. D. Eby: These are certainly issues, but they’re not issues that are part

of this system. The issue is whether or not someone, when they settle

their claim, fully appreciates all the implications of their

claim.

A good example is a cost of future care award, where somebody is

settling for an amount of money for all of their future medical care in

the current system. If that amount of money turns out to be not enough

for their medical care years down the road — they settled too soon, they

didn’t understand the escalation in cost for the services that they

would need, and so on — they’re in that same situation.

The change here, and the benefit here, is that for that

individual, there is better coverage for out of pocket, for lost wages.

There’s better coverage for medical benefits, so they don’t feel like

they have to settle their claim in order to cover the cost of the

services that they need to get better, because there’s better coverage

for that.

For their out-of-pocket expenses, their pecuniary damages, there’s

better coverage. That might actually provide them with additional

supports that would assist them, especially if they’re attending a

resolution tribunal and they’re getting advice that maybe they should

hold on and wait — getting advice from their physician, who’s saying:

“This might get worse. You need to be careful.” They’ll have that

support through the period for lost wages and for medical supports while

they’re waiting to see whether the serious impairment continues to last

or not.

J. Yap: I’d like to get back to temporomandibular joint disorder. Is the

minister also aware that TMJ pain can lead to certain connective tissue

diseases that cause problems that may affect the TMJ joint?

Hon. D. Eby: I thank the member for the information. The determination for ICBC

and for the civil resolution tribunal around minor injuries would be

whether or not the TMJ injury causes serious impairment.

J. Yap: Is the minister aware that TMJ pain has been linked to conditions

like depression; migraine headaches; back, shoulder and neck pain; as

well as tinnitus?

Hon. D. Eby: Same answer.

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

syndrome?”

[3:45 p.m.]

Hon. D. Eby: It depends on the underlying injury that’s causing the migraines.

It’s possible to have — I learn about all these things — WAD 1 or a WAD

2 or a WAD 3 whiplash. The intent of the government is to capture WAD 1

and WAD 2 in sprains and strains under the minor injury definition — and

WAD 3, not.

If it is a WAD 1 or WAD 2 whiplash that is leading to the

migraines, it may be captured under subsection (b). If it’s a WAD 3, it

may not be. If it is captured under subsection (b), then the question is

serious impairment again. Are the migraines resulting in serious

impairment or not?

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

pain?

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

results from a sprain or a strain.

J. Yap: If someone relies on heavy lifting for their work, and, as a

result of an accident or claim that is deemed minor, cannot lift, what

will their recourse be?

Hon. D. Eby: If it means they can’t do their job, serious impairment beyond 12

months, then it is not in the definition of minor injuries.

J. Yap: Herein lies the challenge. If the pain arises after settlement

with ICBC, what happens?

Hon. D. Eby: In the current state of the system, if you settled your tort

claim, then that’s that. In the future state, you could potentially

settle your tort claim and leave your accident benefits open and

continue to receive accident benefits related to rehabilitation on a

go-forward basis. The new system may, in fact, be better in that

situation than the current system.

J. Yap: Currently, broken bones are not included. They’re automatically

outside the minor injury definition. Could this be changed in

regulations? For instance, will a broken pinky finger be considered more

serious than, say, depression or anxiety?

Hon. D. Eby: To the member’s question, subsection (iv) of (

b) says that “a

prescribed injury” and “a prescribed type or class of injury” means that

additional injuries could be included in that list by

regulation.

The member needs to understand, with relation to the broken pinky

example, that it is contextual. If someone is a concert pianist and

they’re unable to work because they broke their finger, and they’re

seriously impaired in their work beyond 12 months, it could result in

serious impairment.

I do understand that it’s sort of like “try to think of the most

trivial broken bone that you can.” But it’s contextual and about whether

it results in serious impairment. Try to think of the most serious

psychological syndrome that you can and try to call it a minor injury.

It depends on whether or not it’s a serious impairment of the

individual. Also, know that we will be refining it further.

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

the member.

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

[3:50 p.m.]

Hon. D. Eby: Broken bones are not included currently in the list, and they are

not anticipated to be. Simply, though, because you have a broken bone

doesn’t mean that you’re suddenly in line for a windfall settlement with

your accident claim. It depends on appropriate compensation for that

injury. It just means that you are not subject to the cap, but it

doesn’t necessarily mean that you would get in excess of $5,500 anyway

for a broken toe, or something like that.

J. Yap: Say a hairline fracture on an ankle, which could cause

considerable discomfort resulting in not being able to walk, and you

have to wear that boot. Would the minister say such an example is a

minor injury?

Hon. D. Eby: Since the last question, broken bones are still not on the list of

minor injuries. But it’s important to understand that simply because

it’s not in the minor injury regime, you can go to B.C. Supreme Court.

It doesn’t mean, necessarily, that you would. You’d have to make an

evaluation about the awards for those types of injuries and the

impairment of your day-to-day activities, and so on.

J. Yap: I thank the minister for that.

Spinal injuries — where under the cap would these fall?

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

J. Yap: To be more specific, where would the minister classify disc

injuries, minor or major?

Hon. D. Eby: Unless the disc injury can be described in something on the list,

then it is not included.

J. Yap: Would swelling of the spine, in the minister’s opinion, be

classified as a minor injury?

Hon. D. Eby: The trick to this definition, to assist the member in making these

determinations, is: is the thing that I’m asking about on the list?

Swelling of the spine — I don’t see it on the list here.

Now, I’m going to give a caveat. I’m not a doctor. I don’t know if

swelling of the spine is considered a sprain or a strain. But I don’t

see it here on the list, so it’s not captured. Broken bones are not on

the list — not captured. We can probably do this all afternoon. I’m not

sure it’s especially productive.

J. Yap: Would cervical radiculopathy, which is the damage or disturbance

of nerve function that could result in pain, weakness and loss of

sensation in the neck, arms or shoulders, depending on where the damaged

roots are, be considered major or minor?

Hon. D. Eby: The member is well past my medical expertise. I can advise him

that it’s not on the list and it’s not anticipated to be added in the

regulations.

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

the opinion of the minister?

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

J. Yap: Can the minister or ICBC tell us how long, on average, it takes

for a spinal cord to heal from injury?

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

J. Yap: I’m asking these questions to give the example of how arbitrary in

nature the minister has defined minor injuries. Will he consider spinal

cord injuries in his narrowing of the terms?

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

definition.

J. Yap: Here’s the thing. Is the minister aware that spinal injuries can

be associated with and lead to depression and anxiety?

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

[3:55 p.m.]

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

cord injuries?

Hon. D. Eby: I assume, because the member is asking, that there must be one. I

struggle to understand the relevance, given that spinal cord injuries

are not in the definition.

J. Yap: Can the minister tell us why so much around this cap and defining

minor injuries is left to regulation and not formalized in the

legislation?

Hon. D. Eby: It’s still, as it was earlier this afternoon, related to the fact

that case law, as it evolves…. As lawyers committed to getting around

the cap work to try to get around the cap, the case law that evolves

needs to be responded to, to ensure that the intent of the definition is

kept.

The intent of the definition is to ensure financial stability at

ICBC and ensure their ability to deliver affordable car insurance to

British Columbians, with appropriate benefits, by streamlining the

process for resolving disputes around minor injuries and also by capping

pain and suffering awards — not out-of-pocket expenses but pain and

suffering awards for minor injuries.

M. Lee: I think that speaks to the concern in terms of the breadth of the

definition of minor injury and the likely possibility, as the Attorney

General has explained to this House just now, that this definition can

continue to broaden and include other categories of injuries in an

effort to maintain costs. That is the concern.

This is where I believe there is some difficulty in terms of

supporting this bill in the current form of this definition, not knowing

the breadth and the ability of this government to extend the reach of

this definition. Can the Attorney General at least confirm that the way

that the minor injury definition is today will not be extended in such a

way that will be prejudicial to British Columbians?

Hon. D. Eby: The member will know that regulation-making powers are constrained

by the statute itself. In this case, this is the regulation-making power

in relation to minor injuries.

Any legislative drafter that was asked by government to include in

a regulation that a very serious injury was, in fact, a prescribed minor

injury, would tell the person making the request that that is not

possible, that that would be subject to judicial review for being

outside the jurisdiction of the government.

The prescribed class of injuries here is constrained by the fact

that the regulation-making power is under the heading of “Minor

Injuries” and further constrained by the fact that subsection (

a) talks

about, “does not result in a serious impairment or a permanent serious

disfigurement of the claimant,” and then there’s a list of some examples

there.

But the regulation-making power is restricted by these very

specific directions, and I assure the member that if government

attempted to put a more serious injury in by regulation that was outside

the jurisdiction that this

section sets out, it would be challenged

immediately by plaintiff’s counsel.

M. Lee: Well, I guess we still have the issue, though, of course, where

psychological and psychiatric conditions are still under review and

consultation, as the Attorney General has indicated to this House.

That’s another example, of course, where this definition, currently as

presented to the House, is somewhat undefined.

By virtue of the regulation-making power under

section 104, there

is — we haven’t yet gone through this, but we will with my colleague

from Richmond-Steveston — a breadth to, of course, the extent to which

regulations are able to be made in respect of any matter relating to

this act or not considered under this act.

I think that the mere title of the section, “Minor Injuries,” of

course, is somewhat circular, because it’s defined within the act, which

defines within the regulation. I don’t believe that the title itself

would have any meaning, necessarily, because it relies upon what’s set

out in the act itself — this particular section, 29 — plus what’s to

come under the regulation.

I don’t think that that is helpful comfort to British Columbians,

to know the extent to which this government, potentially, may expand the

reach of this minor injury definition.

[4:00 p.m.]

Hon. D. Eby: I thank the member for his comments, and I’ll just reiterate that

this is the most comprehensive definition of “minor injury” in Canada,

and we are the last province to do this.

J. Yap: One more example. What kind of coverage will be available to

patients who are maybe forced to scale back hours at work or forced to

seek retraining as a result of injuries?

Hon. D. Eby: If they have a tort claim, any part of the gap between what

they’re able to earn post-accident and what they were able to earn

before is part of their tort claim. There’s no restriction on

that.

J. Yap: Can the minister tell us which party the onus is on to prove that

their pain and suffering is above the $5,500 cap?

Hon. D. Eby: The individual who is injured in the car accident will go to their

physician, or their service provider will provide that information to

ICBC about the extent of their injuries. If they disagree with ICBC’s

assessment of the situation they face, they will go to the civil

resolution tribunal and make arguments that ICBC’s assessment was

incorrect.

J. Yap: How would a person go about, and what criteria would they have to

meet, in order to be moved from minor to the major cap?

Hon. D. Eby: Really difficult to hear that question at this stage in the day.

The definition of “minor injury” is captured in this section, 101. It

says minor injury. It’s got a whole definition there, subject to whether

or not it results in serious impairment. We’ve been talking about it for

the past hour and a half or so. That is the test.

J. Yap: We understand, through the briefing that we received, that

officials have indicated that at least two criteria need to be met in

order for the claimant to be moved to major. Can the minister confirm

this?

Hon. D. Eby: As we’ve been discussing, in order for your pain and suffering

award to be capped, you have to meet two requirements. One is that it is

on the minor injury list and the other is that it doesn’t result in

serious impairment as defined by the act.

J. Yap: Can the minister tell us how ICBC will determine if the victim is

entitled to move up to the major cap?

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

J. Yap: I understand that patients will be required to follow a treatment

plan for up to a year, and if they are still in duress, they will be

moved up. Can the minister confirm that that’s the correct

assumption?

Hon. D. Eby: Yes. If you have a minor injury and it’s causing serious

impairment, there are prescribed medical protocols designed in

consultation with medical experts — think of it as best efforts to get

better — that an individual might be asked to undertake.

[4:05 p.m.]

But it’s an oversimplification to say that every individual would

be facing that kind of situation. This is for situations where someone

has what appears to be, based on the medical information, a minor

injury, but they are not getting better or it’s affecting them more

profoundly than would be expected.

M. Lee: Just to clarify. The Attorney General said they might need to

follow the designated treatment protocols. In what way is that the

case?

Hon. D. Eby: The protocols are only related to people with minor injuries that

say that they have serious impairment. So if you have a minor injury and

you’re not saying you have serious impairment, it doesn’t apply to you.

If you have a non-minor injury, it doesn’t fall within the definition.

It doesn’t apply to you. There’s a discrete group of individuals where

this would apply, and that’s what was intended with the last

answer.

M. Lee: I meant to ask another follow-on question to the member for

Richmond-Steveston. Just to talk about the diagnostic and treatment

protocol that’s referred to in subsection 2(

a) of

section 101, under

serious impairment, in order for a claimant to demonstrate that….

There’s a presumption that’s on the claimant, him or herself, first. But

in terms of the diagnostic and treatment protocol itself, that is a

situation where ICBC, presumably, has put that to the claimant and the

claimant must follow that treatment. Is that correct?

Hon. D. Eby: The only consequence of not following it, for that discrete group

of claimants, means that your pain and suffering award would still be

subject to the cap. There’s no other consequence.

For those individuals with a reasonable excuse about why they

weren’t able to follow the protocol, for those individuals that can show

that even if they’d done the diagnostic and treatment protocol, it

wouldn’t have made a difference to them anyway — those people, as well,

are not affected by this.

You’re getting to a very small group of people who have a minor

injury who are asking for consideration that they’re facing serious

impairment, so to not have the cap on pain and suffering awards apply to

them. They don’t have a reasonable excuse. They’re asking for the

serious impairment to apply in their case.

In that case, ICBC may ask them to participate in a diagnostic and

treatment protocol. If they do, and they’re not getting better and

they’re still facing serious impairment, then they’re not subject to the

cap. If they don’t, and they can show that either way it wouldn’t have

mattered, they’re not subject to the cap. But if they refuse to do it,

then they are subject to the cap on pain and suffering

awards.

M. Lee: I think I understood most of what the Attorney General just laid

out. I think it’s a bit of a matrix that a claimant needs to navigate

through.

When we say “comply with treatment in accordance with the

diagnostic and treatment protocol prescribed for the injury,” at what

juncture is the claimant made aware of what that treatment is, meaning a

treatment that’s in accordance with the diagnostic and treatment

protocol?

Hon. D. Eby: Their medical practitioner would know what the protocols are. It’s

being developed in consultation with medical practitioners.

[4:10 p.m.]

M. Lee: Basically, it’s a situation where a claimant goes to see his or

her doctor, gets a diagnosis, a prognosis. The health report is filed

with ICBC under the previous

section of the act that we

reviewed.

The medical doctor prescribes a diagnostic and treatment protocol

for the particular injury that that medical doctor is aware of. What if

that medical doctor or physician, physiotherapist or what have you —

health professional — is not aware of that protocol? Whose

responsibility is it to know what the appropriate protocol is so that,

again, this claimant’s rights are not prejudiced under this

provision?

Hon. D. Eby: It would be very strange that a doctor getting paid by ICBC for

the work that they’re doing in relation to their patient wouldn’t know

about what the protocol is. The person is going to their medical service

provider. That service provider is making a claim from ICBC for the

expense to treat that individual. They would know because they’re

receiving compensation. They’re in contact with ICBC. I can’t think of a

scenario where this individual wouldn’t know.

M. Lee: I appreciate the response. If, however, for some reason, there’s a

mistake or a change…. These diagnostic and treatment protocols are

prescribed, also, by regulation. If there’s a change for a particular

form of injury, whose responsibility is it for a gap in the system, if

that occurs?

Hon. D. Eby: In subsection 101(2)(a), it talks about: “the claimant, without

reasonable excuse, fails to seek a diagnosis or comply with treatment”

in accordance with a protocol. A reasonable excuse wou