Fifth Session, 41st Parliament

(2020) OFFICIAL REPORT

OF DEBATES

(HANSARD)

Tuesday, July 7, 2020

Afternoon Sitting

Issue No. 335

ISSN 1499-2175

The HTML transcript is provided for informational purposes only.

The PDF transcript remains the official digital version.

CONTENTS

Orders of the Day

Committee of the Whole House

Bill 9 — Evidence Amendment Act, 2020 (continued)

M. Lee

Hon. D. Eby

Reporting of Bills

Bill 9 — Evidence Amendment Act, 2020

Third Reading of Bills

Bill 9 — Evidence Amendment Act, 2020

Committee of the Whole House

Bill 19 — COVID-19 Related Measures Act

(continued)

Hon. D. Eby

A. Olsen

M. Lee

Bill 11 — Attorney General Statutes (Vehicle Insurance) Amendment Act, 2020

J. Johal

Hon. D. Eby

Bill 19 — COVID-19 Related Measures Act

(continued)

Reporting of Bills

Bill 19 — COVID-19 Related Measures Act

Speaker’s Statement

Third Reading of Bill 9

TUESDAY, JULY 7, 2020

The House met at 1:34 p.m.

[Mr. Speaker in the chair.]

Orders of the Day

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

[1:35 p.m.]

Committee of the Whole House

BILL 9 — EVIDENCE AMENDMENT ACT,

(continued)

The House in Committee of the Whole (Section

B) on Bill 9;

S. Gibson in the chair.

The committee met at 1:36 p.m.

section 1 as amended (continued) .

M. Lee: Just before the break, we were having a discussion regarding the

discretion that is utilized under and available to the courts under

subsection 12.1(6) as set out in

section 1 of this bill. I wanted to

come back to the suggestion by the Attorney General that, as I

understand it, that discretion makes it such that it is unknown as to

what the cost savings from the effect of implementing this bill will

be.

I would like to ask the Attorney General just to outline how that

discretionary provision works against

section 9, which sets out the

limits around the $3,000 per expert report, the 5 percent cap on

disbursements, as may well be set, and the number of experts.

Hon. D. Eby: To be clear, the $3,000 and 5 percent numbers are not finalized.

We’re still engaging in work. Those numbers may change. They will be set

by regulation, which is also, obviously, part of the uncertainty. But

that is not the significant piece.

The significant piece. In the previous bill that was struck, there

was an absolute limit on the number of experts, which made it a matter

of math to determine how many cases are going forward, what number of

expert witnesses are allowed by the rule for recovery and what the

expected savings are. When you introduce discretion, and this bill does

introduce discretion for the court, it’s difficult to know how many

additional witnesses and in what circumstances and how the courts will

apply this test.

[1:40 p.m.]

We’ll wait and see how the courts apply the test — how the

justices apply the test — that’s set out here. Once we have an idea

about how that is rolling out, then it’ll be easier to provide

projections around potential savings for British Columbians and

improvements and efficiencies around the court system. Right now it is

just not sufficiently certain to be able to provide those projections,

so I’m unable to do so.

M. Lee: I wanted to note, though, that when we’re talking about cost

savings from implementing this bill, clearly, the three restrictions

that are set out under

section 12.1(9), relating to cost per expert

report cap on disbursements and the number of experts…. Certainly, in

the instance of the first two items, as we understand that government is

considering a $3,000 limit per expert report and a 5 percent cap on

recovery in terms of what can be recovered in disbursements, those in

themselves are cost items. Under

section 12.1(9), as the Attorney

General just indicated, that is to be set by regulation.

I would also point out that under

section 12.1(10) of

section 1 of

this bill, there is, further to that, that anything that is set by way

of regulation under that subsection (9) that is inconsistent with the

rules of court will have those regulations prevail. So there is no

discretion. There’s no discretion for the courts in terms of the dollar

figure per expert report that is going to be set by regulation, whatever

that amount might be. There is no discretion by the court in terms of

the amount of disbursements that might be recoverable. Again, we

understand the government is contemplating it to be capped at 5

percent.

There is no discretion. The regulations will trump the rules of

court. So I still find it surprising that the Attorney General is

indicating, in this part of our committee discussion, that it’s only a

hope that there will be cost savings from this bill. It just raises

another question that I’d ask to the Attorney General as to what the

purpose of this bill is.

Hon. D. Eby: I’m not sure how many ways I can say the same thing. I’ll do my

best to say it differently, but it will be the same answer. The fact

that we don’t know how the court is going to use this tool that we’re

giving them, in terms of exercising their discretion about the number of

expert witnesses that will be allowed, makes it uncertain what savings,

if any, will flow from this. We’re hopeful. The reason for this bill

is…. It’s either version 1.1 or 2.0 of an attempt to get expert costs

under control in the courts. Now, this is not clear to me, in terms of

the opposition critic, whether he understands or believes that there is

an issue with expert costs and expert reports in the court.

[1:45 p.m.]

I think there is a fairly significant consensus that there is a

serious issue on both the plaintiff and defence side of this adversarial

expert culture driving costs and not assisting the courts proportionate

to the cost that they bring to the system. Our hope is that we provide

this tool to the courts, and the justices are able to use it to address

this issue. It’s another tool that they have.

But we can’t predict that. We can’t predict what it will look

like. As a result, any projected savings would be, at best, a guess.

It’s not something that you can build a financial projection around for

ICBC, for government or for anybody going to court, because it requires

the court to wrestle with how they’re going to apply this

test.

Once it’s been through a number of hearings, then we’ll start to

have an idea about how the courts are planning on applying this test and

what it’s going to look like. We may be able to make some projections

based on that, but at this stage, it’s premature.

M. Lee: Well, I heard in the Attorney General’s response that it is with

the view to get expert costs under control. The significant limitations

around the way in which injured British Columbians can bring forward and

retain experts to support their claim for recovery…. Certainly that is

being restricted and limited. That is where the balance lies, in terms

of what the benefit is of imposing these strict restrictions against the

cost of a different sort to British Columbians, which is their rights —

their rights to be able to have access to justice, to be able to bring

forward a full claim for recovery.

That brings me back to the statement that I’ve read out here in

this committee process, where we have a senior leader in the management

team of ICBC indicating that of the $400 million of expected savings on

the rule 11-8 change, half of that amount would be due to lower payments

for damages. More expert reports make claims more expensive.

Apart from getting expert reports under control in terms of the

number and the cost, what this bill is also doing…. At least, if we

follow the line of presentation that was there on the rule 11-8

proceeding, it is an attempt to reduce the amount of claims, because

again, more expert reports make claims more expensive. That’s the

statement of ICBC.

Again to the Attorney General, is he not concerned about the

trade-off that is occurring in this Bill 9? Literally, if it’s a hope

that costs may reduce…. We’re not just talking about costs of the expert

reports. We’re talking about costs of what ICBC will pay out to

successful injured British Columbians in court. I ask the Attorney

General: is he not concerned that this bill has a different cost

attached to it, in terms of the rights of injured British

Columbians?

[1:50 p.m.]

Hon. D. Eby: So it’s pretty clear. The new subsection 12.1(6) — that the court

is encouraged to exercise its discretion, to determine whether or not

the additional expert witness, beyond the limit — will do two things.

One, will it bring new information that wasn’t otherwise available to

the plaintiff? If not, then no extra witness. The second piece is that

if we don’t allow this witness to provide this evidence, will it provide

prejudice disproportionate to the benefit of not increasing the

complexity and cost of the proceeding?

In other words, experts bring cost to hearings. They bring

additional complexity. Given the value of the claim and the situation in

front of the court, is it more unfair to allow the expert or to disallow

the expert? What is the benefit that is brought compared to the cost of

allowing additional experts?

I have confidence that the courts can do this work and ensure fair

proceedings in front of them. The test is right there. If it’s going to

be disproportionately prejudicial to the person who’s not allowed to

bring the expert report forward, the court will allow them to bring the

expert report forward. If it’s not, if it just increases cost and

complexity, the court will say: “No. Sorry. Even though this issue

wasn’t covered, you’re not allowed to bring an additional expert

report.”

I’m hopeful the courts will use this tool and will make those

inquiries. They have this test now. They have this discretion to make

these determinations. I’m not sure that reading quotes from the other

bill, when there was no discretion, one that we agree the courts have

rejected…. Chief Justice Hinkson’s reasons were clear. The reason was

there wasn’t discretion, in large part — one of the reasons why he

rejected that law. Here is the test. Here is the discretion to prevent

unfairness to a party in a vehicle injury proceeding.

M. Lee: We’re spending some time on this balance. At least I see, in this

bill, the need for that. I’m still not hearing from the Attorney General

about any consideration or concern about access. We have canvassed, in

the previous committee, the challenges with these new restrictions,

including how that discretion of the court will be met and worked

through.

This is what I have continued to raise concern about. It’s the

utilization of the roles that the Attorney General plays, which are,

again, focused on cost; focused on reducing the number of experts, costs

around those experts; the disbursements that a plaintiff, an injured

British Columbian, will be entitled to recover — to be limited on the

total amount of recovery of that claim.

This is where there has been a real confluence of the roles that

he plays, at the detriment of the rights of injured British Columbians.

Because, clearly, this bill is about managing experts and their costs.

But fundamentally, that is more than likely to be for the benefit of

ICBC as the chief litigant of this province — the one entity for whom

litigation, through our court system, is involving as a

defendant.

[1:55 p.m.]

Yet the Attorney General is able to utilize his other mandate,

which is to protect the rule of law, the rights of British Columbians,

and is bringing forward an amendment that will reduce that. That’s where

the trade-off becomes, and that’s where the conflict lies.

As we’re having this discussion about costs, I hear the Attorney

General state that it’s no longer estimated cost savings from this bill;

it’s a hope. I get the point about discretion, but as we’ve just talked

about, that discretion doesn’t apply, again, to the costs per expert

report or the percentage of limitation on disbursements. There’s no

discretion there. The regulations will trump or prevail. So this is

where my concern lies in this bill, coming forward in this

manner.

As I have stated on Bill 11, as well, I believe that there is no

proper consideration for the rights of British Columbians when this bill

comes forward in this manner. We have talked about many elements of the

bill, and more to come in this committee stage. But this is my concern

in terms of the impact that this bill is having on the rights of British

Columbians.

Let me say that, as we look at an area of the bill that the

Attorney General had brought forward, we talked about the 5 percent

limit and where that limit, in terms of the data supporting it, is based

on data that ICBC has available, which is 70 percent of the body injury

claims. So let me ask, first, to the Attorney General: is there any

other precedent for the imposition of a 5 percent limit or a percentage

limit on disbursement recovery anywhere in Canada?

The Chair: Attorney General.

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

A lot there from the critic, and sort of a bit of a speech before

the question. The answer to the question is: no, not anywhere that we’re

aware of in Canada.

With respect to his comments, I…. The implication, although he’s

not said it, of the member’s speeches and remarks is that he supports an

unlimited number of expert witnesses in motor vehicle collision

litigation, regardless of the cost, regardless of duplication of

evidence between witnesses, regardless of expert shopping and all the

issues that have been identified — the polarization; the expense and

complexity; the problems with access to justice identified by Chief

Justice Brenner and Allan Seckel in their report, by commentators in the

United Kingdom and by commentators in Australia that led to very

significant restrictions on expert witnesses in those

jurisdictions.

I think it’s one thing to stand up and ask questions about the

act, which is the important and critical role of the opposition here. I

think it’s quite another to suggest impropriety in putting limits in

place on experts following common-law jurisdictions around the world,

following the comments of a former chief justice and a former Deputy

Attorney General under the B.C. Liberals and then chief of staff — still

a very respected person, who is doing work for this government right now

at the cross-jurisdictional COVID advisory team.

You know, all these people say there’s a problem with expert

reports. You need to get them under control. We have a bill in front of

this House that proposes to do that. The member suggests that it’s

improper that this came forward because I am the minister for both ICBC

and the Attorney General.

[2:00 p.m.]

I’ll just leave it at that, I think. If it is the member’s

position that the role of Attorney General is to turn a blind eye to a

serious issue around expert reports in our court system in order to

preserve the existing system exactly as it is, then I’ll have to

disagree with him. I don’t believe that’s the role.

Many Attorneys General, including some that served under B.C.

Liberal governments, would probably disagree with that too. I know that

at least one Deputy Attorney General would disagree. I’m not quite sure

what his position is, in terms of expert witnesses. But I guess it

doesn’t matter, because it’s important to ask the questions. The

questions, I believe, are fully answered by subsection 12.1(6), which

allows the court to allow additional experts in order to prevent

unfairness to any party.

M. Lee: Clearly, an Attorney General of this province needs to protect,

preserve and sustain the proper administration of justice for our

province. My challenge is not with that role.

My challenge is the Premier, quite frankly, putting the member

from Point Grey in the dual role of being both the Attorney General — to

do what I just said and as the Attorney General described in his

response — and also with a mandate first to do a review of the cost

structure of ICBC. That is effectively what the Premier asked the

Attorney General to do. But what has happened here, of course, beyond

the review, has been a series of reforms. This is one of

them.

This has been driven out of a need to reduce costs for ICBC in

that cost saving. While we all want to make life more affordable and are

concerned about ICBC rates and the model it has in place, the Attorney

General has a specific role. That primary role is to protect the rights

of injured British Columbians. My concern with the bill is the overall

framing of the bill and the conflict between those two roles.

Let me just come back to the 5 percent limit. The Attorney General

indicated that there is no other precedent in Canada for this 5 percent

limit. This is an additional restriction, beyond limiting the number of

experts, which is, again, what rule 11-8 did — ruled unconstitutional.

“Okay, put some discretion in, in this bill.” This is beyond that. This

now goes to imposing a limitation. When we look at the role of that 5

percent limit, in the previous committee process the Attorney General

indicated, based on the data maintained by ICBC, that 70 percent of the

claims are falling within that 5 percent.

What the Attorney General stated is that for those remaining 30

percent, there are a number of potential explanations of why they’re

outliers. When I asked what the ICBC reimbursement typically is for

disbursements on those 30 percent of cases excluded, the Attorney

General said that we don’t have those numbers.

[2:05 p.m.]

Does the Attorney General, since early March, have those numbers

available, in terms of what the level of ICBC reimbursement is for the

other 30 percent of cases?

Hon. D. Eby: I do have those numbers. For files with a value of less than

$100,000, 28 percent of them exceeded that 5 percent standard. Of files

worth between $100,000 and $200,000, 70 percent of them exceeded that 5

percent standard. Of files $200,000 to $1 million, 65 percent of them

exceeded that 5 percent standard. Of those over $1 million, 25 percent

of them exceeded that 5 percent standard.

I would like to underline for the member that no final decision

has been made about the 5 percent amount or about the per-expert-report

amount. That’s still a live discussion within the ministry, but I think

the numbers show some trends for him, of the files that exceed that 5

percent standard.

I do want to just briefly respond to the member’s suggestion that

because ICBC is involved in litigation, it’s improper for me to be

tabling this bill. I wonder what he thought when I tabled the opioid

litigation bill, when he voted for it — which set out the rules for

litigation around opioid manufacturers and distributors, the

class-action litigation that’s underway where Ministry of Attorney

General lawyers will be litigating that according to the rules that were

set out in that bill.

I wonder what he thinks about the fact that the Attorney General

is the head lawyer for civil litigation in the province and that any

change to any process in court, through the Evidence Act or otherwise,

would inherently have impacts on quite an extensive portfolio of civil

litigation involving the government. Under the member’s logic, the

Attorney General could not take any action in relation to our court

system. Anyway, I’ll leave that where it is.

I certainly encourage the member if he has some thoughts about the

appropriate percentage of the value of a claim, as a limit for

recoverable disbursements or for expert reports. I’d be glad to hear

them. As I say, this is an ongoing discussion and ongoing policy

analysis happening within the ministry about what an appropriate and

fair level should be.

M. Lee: Thank you to the Attorney General and his team for sharing that

level of detail around the breakdown. I’m recognizing that the

disbursement cap has not been set by regulation. I do acknowledge that

again, certainly.

[2:10 p.m.]

Just so I understand the numbers that were provided, for the 30

percent of cases that would be excluded from the other data that was

provided…. We’ve got a situation where one set of data indicates that 70

percent of cases fall, generally speaking, under the 5 percent level. Of

the remaining 30 percent…. The Attorney General has read into the record

what the general breakdown of those cases would be, depending on the

dollar value involved with those cases.

I would just ask for clarity on the initial set of 70 percent of

claims. How many of those claims would actually have no disbursements

charged at all because they don’t end up retaining a lawyer or going

forward to trial?

Hon. D. Eby: The data set that we’re working with here is the files where ICBC

has actually paid out disbursements to a party. There is no data

available to me immediately, at least, and possibly at all — I’m not

sure; I’ll try to find out — about zero disbursement files.

Of those files where disbursements were paid out by ICBC, I can

advise the member that 55 percent of files were below 4 percent of the

settlement value, and 10 percent were between 4 to 6 percent. The 1

percent of payments to the Crown are not included in this. So 4 to 5

percent.

The effect of this is that the majority of cases come in under

that 5 percent threshold. Again, not determinative for us, in terms of

where that will be set, but certainly instructive of where these files

are.

M. Lee: I just wanted to note the Attorney General’s previous response. I

certainly recognize the role of the Attorney General, including within

this Legislative Assembly and for cabinet and government, as the chief

legal officer reviewing legislation that comes forward, including the

opioid recovery act and other legislation that the Attorney General

mentioned in his response.

[2:15 p.m.]

What I’m referring to, of course, are the specific roles that the

Premier has given and assigned to him, which involve, as well, not only

the ministerial responsibilities but the overall management of this

particular Crown corp.

With the level of political discourse that has occurred in this

province over the last several years…. We’re not talking about a

particular set of rules in one case, unless we’re talking about this

particular bill. We’re talking about a whole series of initiatives and

reforms that this Attorney General has brought forward for the benefit

of ICBC. I think it is hard for British Columbians to distinguish, at

times, which role the Attorney General is playing and the conflict

between the roles. That’s what I’m certainly challenged with.

Let me say, then, that in terms of the information that the

Attorney General is providing, when I look at the report of ICBC

entitled Impacts of COVID-19 Pandemic on ICBC dated May 14,

2020…. On page 7 of that report, under the heading “Other financial

risks: prior year claims, Evidence Act legislation and court challenges”

— hence Bill 9 — there is a paragraph that states:

“The pandemic has also resulted in a delay to the provincial

government’s proposed changes to the Evidence Act,” vis-à-vis Bill 9.

“The changes would have helped ICBC mitigate some of the impact from a

B.C. Supreme Court decision in October 2019,” which we’ve been

discussing here as the Crowder decision, “that resulted in previously

recognized savings coming from a limit on expert witnesses and reports,

now being reversed,” as ruled unconstitutional. “The legislative and

supporting regulatory changes under the Evidence Act did not pass by

March 31, 2020, as expected. As a result, ICBC could not recognize the

associated claims cost savings in fiscal 2019-20.”

The Attorney General earlier indicated that it hasn’t been

recognized, which is consistent with what this says. But there is an

expectation that if by March 31, 2020, that legislation had passed in

this House — but for the COVID-19 pandemic — there would have been cost

savings that would have been recognized in the fiscal 2019-2020 period

for ICBC.

Between the time that we stopped in our committee stage on March 4

or 5, and the need for the fiscal period to set in place those cost

savings, was there not an assessment of the projected cost savings due

to the change to the Evidence Act by virtue of this Bill 19, as Bill 9,

as this statement seems to indicate?

Hon. D. Eby: Yes, there was an assessment. The assessment was that the savings

are too uncertain to provide any financial level of comfort that the

numbers could be relied on. We’ve explained it to him several times.

Happy to explain it again. No projection of savings from this bill has

been included in ICBC’s financial projections because of the uncertainty

that followed from the assessment of the potential impact of this

bill.

M. Lee: I heard the Attorney General’s response. I will just point out

that the statement that I read made no indication of that. The only

indication in ICBC’s report to the public is that the legislative and

supporting regulatory changes, under the Evidence Act, did not pass by

March 31 as expected. As a result, ICBC could not recognize the

associated claims cost savings in fiscal 2019-20.

[2:20 p.m.]

Does this statement, which is in an ICBC document…? Does the

Attorney General actually agree with that statement, or is it

incorrect?

Hon. D. Eby: I mean, it’s a partial explanation. The bill didn’t pass, so

certainly no financial projections could be based on it. But it’s not a

complete explanation. The complete explanation is that there is just

insufficient financial certainty around the impact of the bill to

project savings from it.

M. Lee: I understand from the Attorney General’s response that it is a

partial explanation that was indicated in the ICBC report, as opposed to

a full explanation. The Attorney General is giving that explanation to

us here, as I stand to understand that.

It does beg the question. In the future, after this bill passes,

if it does, in this House, will ICBC recognize any associated claims’

cost savings in its fiscal periods?

Hon. D. Eby: It’s certainly our hope that there will be savings and

efficiencies, not just for ICBC but generally in the system, that flow

from this. But as I said, the total value of those, or even whether they

will materialize at all, is too uncertain, given the discretion that’s

in this bill. Our hope is that the courts will use this tool, as they

see appropriate, to restrain some of the excesses in expert reports that

we’ve seen on all sides, but that remains to be seen. My hope is yes,

but we’ll see.

Once there is a sufficient level of jurisprudence involving this

new test and the discretion, it is certainly possible that ICBC could

use that actuarial information to project what things are going to look

like in the future, which is the job of a significant number of people

over in the insurance company there. But at this stage, it’s just too

uncertain.

M. Lee: I just wanted to come to some statements that the Attorney General

made in committee stage back on March 5.

We were discussing the impact of these changes to, for example,

plaintiffs who have lower incomes. The Attorney General indicated, in

response to one of my questions, that the consideration for someone who

is low income is that it’s really important for them to resolve the

dispute as quickly as possible and to settle it.

I wanted to clarify the Attorney General’s view on this, in terms

of the importance for people who have lower incomes to resolve their

disputes quickly, as soon as possible, under this potential cap on

disbursements at 5 percent or any other level.

How does the Attorney General see the working of contingency

arrangements in this regard, where, as we understand, the personal

injury lawyers who enter into contingency fee arrangements with their

clients, regardless of the length of the proceeding, their charge is the

same?

[2:25 p.m.]

I ask the Attorney General: is the Attorney General not concerned

that this disbursement limit will actually limit the ability of

individuals who have lower incomes to actually maximize their amount of

recovery?

Hon. D. Eby: I think the member will find, if he’s interested in contingency

fees and concerns, that certainly I share it with him, about how they

operate. He may be interested in the pre-litigation payment initiative

that’s in Bill 11, which recognizes that in many cases, ICBC has no

dispute over a certain amount of payment to an individual. There is an

amount above that that is in dispute. A litigation claim could

materialize for someone or not, depending on how the litigation goes.

But that is the

section that should be subject to the contingency fee,

not the amount that everyone agrees the person’s entitled to.

With the pre-litigation payment initiative, ICBC can pay the

amount that is not under dispute. Because it is paid in advance of a

lawyer being retained and without any prejudice to the person who

accepts the payment, a couple things will happen.

One is it won’t be subject to a contingency fee. Two is if they

decide to go to litigation, they have money in hand and they are able to

use that to resource additional claim activity if they want to do that.

They don’t have to borrow money from their lawyer at a 10 percent

interest rate, which is a shocking practice that I did not know was

happening in the province until I took on this job — that lawyers were

lending money to their clients in this way.

Obviously, it’s all evidence, in my opinion, that the current

system is not a great one and why we are shifting, in May, to a

significant reform of this system — one that will not depend on whether

or not a person can borrow money from their lawyer to endure a

multi-year court battle to access money they’re entitled to and where

they won’t have their own insurance company hiring a lawyer for the

at-fault driver to fight them in court. But I digress.

I don’t believe that there is any impact of this proposal on

contingency fees received by personal injury lawyers or paid by clients

out of their settlement, if that was the member’s question as I

understand it. There is no impact of this bill on contingency fees.

That’s Bill 11.

M. Lee: I certainly look forward to continuing the discussion regarding

pre-litigation payments in the context of Bill 11 to come. Of course

with Bill 9, not knowing the status of Bill 11, we’re talking about this

particular set of changes and the impact it will have on people of low

income and the fact that because of the significant retroactive effect

of this bill, we’re also talking about claims that have already been in

process to date. But we will come to that.

My question, and concern, is around the concept that the Attorney

General seems to be indicating — that the faster we get individuals

through the court process or the pre-litigation process, through

settlement or otherwise, the better for them. I don’t disagree with

that.

But for those plaintiffs, injured British Columbians, who are

currently or in the future, in the absence of Bill 11 passing, in

contingency fee arrangements with their lawyers representing their

interests, there is no change and no difference to the speed aspect. I

just wanted to clarify that one point, but then go on to say

this.

[2:30 p.m.]

When we look at this disbursement rule again under subsection

12.1(9), if an individual is a person who has a lower income versus a

person who has a higher income, the 5 percent disbursement limit for the

purpose of discussion here will actually act to limit the ability of

that lower-income individual to seek recovery of their disbursements. It

has, actually, a disproportionate effect.

[R. Chouhan in the chair.]

An individual who is seeking compensation for their full loss, who

is making less income to an individual who is, will have less of an

ability to fully recover their disbursements in the action, by virtue of

this 5 percent cap. Is the Attorney General concerned about any

disproportionate effect on plaintiffs or claimants who have different

levels of income?

Hon. D. Eby: We’re committed to getting the number right in terms of the

recoverable disbursement, the percentage of the overall claim and the

value of the expert reports. The impact on all plaintiffs will be the

same. If they go over the limits, when they’re set, they will not be

recoverable disbursements. They will come out of the settlement amount.

It won’t matter what the person’s income is.

If the member is asking whether, under the current tort-based auto

insurance system, someone with more resources, more income has a better

time of it than someone with less income and less resources, I think

that is indisputably true. It’s unfortunately true in our court system

generally. It’s not particular to auto tort claims. It’s something that,

through legal aid reforms and through other justice reforms around

access to justice, we’ve tried to take some of the rough edges

off.

But it is true. If you have more money, you can hire a more senior

lawyer in our court system that has more experience, that is better able

to litigate your claim. It’s just a reality of our court system which I

take on, as Attorney General, as one of my mandates — to try to reduce

that disparity between people who have resources and people who

don’t.

If you have money, you don’t have to borrow money from your

personal injury lawyer while you wait for a settlement at, in many

cases, 10 percent interest. That is a big problem with the current

system. It’s why we’re changing the system; why we’re going to a system

where people don’t have to wait years for their settlement; and where,

if they’re going to get the care that they need, they’re not going to

have their insurance company hiring a lawyer for the at-fault driver to

fight them in court.

The insurance company will have one duty — again, Bill 11; look

forward to it — which is the duty to assist people in understanding all

the benefits they’re entitled to. It’s not the duty to the at-fault

driver to defend them against the reasonable claim that they were at

fault in the accident.

If the member wants me to agree that the current system is a good

one and that changes to it are therefore making it worse, no. I think

this change is meant to make a significant improvement to an issue

that’s been identified over a long period of time. But it is a change to

a system that is not working for British Columbians. It is in the

context of a large-scale reform we’re doing that’s going to save people

money and improve their benefits.

There will be a difficult transition, I acknowledge, for many

people who work in this sector. We continue those discussions with

people in that sector to try to mitigate some of that impact.

[2:35 p.m.]

But the fact is that the change is coming and that our attempts

here to mitigate some of the excesses of the system as we wait for the

transition period to the new system is just that. We’re trying to

mitigate some of the excesses, which is an important thing to do for

British Columbians because they have to pay for all of these extra

reports through their car insurance.

M. Lee: Certainly, we know that ICBC has been challenged in different ways

and that, whether it’s under the previous government or this current

government, there have been many efforts to try and improve that. What

we’re talking about, though, is how detrimental this bill is to British

Columbians. Let me use this as an example here, just to use some numbers

by way of illustration.

In terms of the disproportionate impact that the percentage cap

would have on an income earner, if there’s a person who makes, let’s

say, $200,000 per year and loses a year of income as a result of a motor

vehicle accident, that person would, under this Bill 9, be able to

recover at least $10,000 of disbursements, 5 percent of that $200,000

loss. If a person who is making $20,000 per year loses a year of income

as a result of a motor vehicle accident, that person can only be assured

they would be recovering $1,000 of disbursements.

This is a situation where — beyond the actual resources of an

individual, a person who is of higher income versus a person of lower

income; we’re not talking about that — we’re talking about the fact that

the percentage of recovery actually has a disproportionate effect on an

individual who makes a higher income versus a person who makes a lower

income, based on the amount that that person would be able to

recover.

That means a lower-income person would only be able to recover…. I

recognize that’s a low income. That’s a pretty low income, at $20,000.

But whatever number you pick, say $40,000, the percentage of recovery,

even at a $2,000 level, is quite low. As a result, that makes that

individual more susceptible to the kind of low settlement offers that

ICBC has been utilizing, at least since February of 2019. This is what’s

forcing many of these claimants into having to go to court,

further.

When faced, under this bill, with a choice of accepting a lowball

settlement from ICBC versus the recognition that they can’t even recover

a small percentage of their disbursements, this has a severe effect on

that individual’s ability to get justice, to access justice. This is the

concern. Again, does the Attorney General not see the concern I have,

relating to that disproportionate effect, in view of the example I just

gave?

Hon. D. Eby: A couple of things. First of all, in terms of claims worth less

than $100,000, which the member’s example is an example of, only 28

percent of those claims would be affected by a 5 percent disbursement

level;

whereas for claims worth $100,000 to $200,000, it’s 70 percent of

those claims; and for $200,000 to $2 million, it’s 65 percent of those

claims.

[2:40 p.m.]

The lower-value claims are less affected, so the member’s

suggestion of disproportionate impact is not borne out by the

statistical reality of where the expert report expenses are being

incurred. I think that if there were a world where you could have

unlimited expert reports, pay those experts whatever they charged,

present those to a court and get that full recovery back from ICBC and

it wouldn’t affect car insurance rates, that would be a great situation.

But there are finite resources.

What the member is proposing, maybe — he’s just asking a question;

it’s not fair to say he’s proposing it, but devil’s advocate here — is

that there be no limit on expert reports, that there be no limit on

recoverable disbursements and that people who drive cars in British

Columbia should pay to subsidize that system. Who does he think will be

most affected by increased car insurance rates under that system, with

out-of-control expert reports? It’s going to be poor British Columbians,

people working low-wage jobs.

That is exactly why, to benefit low-income British Columbians,

people who are hurt by higher car insurance rates, we have the reform

coming in, in May of this year to fix the system and save them 20

percent on their car insurance. So to suggest that an initiative to help

control an area of costs that is a source of wide agreement across our

justice system and common-law systems across the world as a problem area

and to say that this is what’s going to hurt poor people is bizarre,

because it’s not borne out by the evidence.

Secondly, it proposes to subsidize this out-of-control system by

charging more for car insurance to the same poor people the member says

he’s trying to protect. It’s a tough pitch, I would say, to low-income

British Columbians that they need to pay 20 percent more for their car

insurance to maintain this current system — which, I don’t know, I think

we all agree isn’t working very well.

I’ll leave that to that member, that he’s actually defending their

interests by charging them 20 percent more or asking them to subsidize

these experts that charge $10,000 a report or $50,000 worth of expert

reports on a $100,000 claim — that that’s somehow to the benefit of

low-income British Columbians.

M. Lee: Well, to be clear, I’m not the person developing, on the fly, all

sorts of initiatives and programs to reform ICBC. That is the Attorney

General. That’s what has been happening. On any given day, there’s a new

product reform here, there’s a new product reform there, and it’s just a

hope. That’s what we have discovered here today. It’s just a hope. It’s

a hope and a prayer.

My concern is about the rights of injured British Columbians. When

we look at this 5 percent disbursement limitation, no other jurisdiction

in this country has that disbursement limitation. Where did this come

from?

Let me ask the

Attorney General what the origin was of this disbursement limitation.

Where did this proposal originate?

Hon. D. Eby: Let me get this straight. The member hands over…. To the member’s

credit, he wasn’t there in the previous government.

[2:45 p.m.]

They hand over to our government a corporation losing $1 billion a

year. Then the member stands up and says: “Oh gosh, you really seem to

be rushing these reforms.”

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

pretty significant bleed.

I’m happy to say that pre-COVID, we were on track to a break-even

year for the first time in a long time at ICBC, with the actual

actuarially indicated rate — that is, the rate increase required to

ensure ICBC will break even — of zero percent. Pretty good. Pretty good

start. We’re not done, because rates are still too high. So May — a new

system, 20 percent savings for British Columbians. Stabilize the

patient; make the patient better. That’s where we are.

Where do the ideas come from, the member wants to know. Good

question. For the 5 percent proposal…. Again, that’s not a final number.

Those discussions are ongoing. I’m glad to hear suggestions from the

member about an appropriate value, from his perspective. It was a

breaking point in terms of where the disbursements paid out by ICBC to

claim files seemed to be appropriate, in terms of the number of files

above and below that threshold, and similarly for the $3,000 expert

limit. Glad to hear feedback about both of those numbers and where the

member or other stakeholders feel they should be.

That there should be a limit, that there needs to be a limit on

the cost of expert reports and recoverable disbursements…. I’m not sure

if, from the member’s perspective, that’s a debatable point. There

should be limits. The reason there should be limits is that there are

not infinite resources to pay for these recoverable

disbursements.

If there is one side that can generate as many expenses as they

want in litigation and have them all paid back and there’s no governor

and no control on that and ICBC has to pay those costs, or the controls

and governors that are there are, for one reason or another, not capable

of controlling that, then there has to be a limit put in place. Because

if you can incur expenses to the point of 50 percent or more of the

value of a claim, then everybody’s got to pay for that through their car

insurance. And that’s not fair. So there should be these limits. Glad to

hear suggestions from the member about where they should be coming

from.

Some of these reforms came from civil justice task force reforms.

Other proposals came from lawyers who practise in the area. Other

proposals came from other jurisdictions — the United Kingdom, Australia.

I can’t advise the member exactly where this particular piece, the

percentage of recoverable disbursements, originated. We’ll do some work

and see if we can track down the original source of that. We just don’t

have it at the moment for him.

Whether it came from a public servant, whether it came from

another jurisdiction, whether it came from a civil justice task force

report, whether it came from wherever, if we don’t agree that there

needs to be a limit on these expenses being incurred, then what does it

matter where it came from? We just don’t agree on the bill. I understand

that, if that’s the member’s perspective.

M. Lee: Well, I think that we’ve often been able to have good discussion

about bills of this nature without going back into history. The Attorney

General just did that. Of course, we know what the previous government,

when it turned over the keys with a $2.7 billion surplus to this

government, looked like.

Interjection.

M. Lee: Members on the other side may laugh about that. But when we talk

about $5 billion towards COVID recovery, who can fund that? It’s because

the previous government was able to manage the fiscal affairs of this

province so that it could meet this rainy day, this horrible rainy

day.

[2:50 p.m.]

The scale of the losses at ICBC continued to escalate when this

government took over. We’ve talked at length — not here in this

particular bill debate, and we will have another round in estimates on

ICBC — about the fiscal position of that Crown corp. But when I talk

about product reform, one of the product reforms that the Attorney

General had indicated before was, of course, the minor injury cap

reform, which the Attorney General had estimated would result in $1

billion of savings.

Has that actually occurred? Well, if that has occurred and if

there are cost savings from this Bill 9 — although we’re not sure; it’s

still a hope — why is it that we learn that the Attorney General has

been developing on the side while doing all of these other product

reforms no-fault, which is what’s coming forward in Bill 11?

If he had such confidence in his product reforms in the past, the

$1 billion of savings by limiting minor injury, by including brain

injury and concussion, after he said he wouldn’t do that, by way of

regulation, as we will see in Bill 11, with all of the series of

regulations to be determined in terms of the nature of that bill, we

still have here in this House this Bill 9, which we still don’t have

definition on.

The Attorney General has repeated to say that we don’t know what

the level of disbursement will be. Is it going to be 5 percent or lower?

We don’t actually know the number of the amount that would’ve been

limited for each expert report. We all understand, in terms of costs to

British Columbians, there is only one taxpayer here. But at what

cost?

When we’re talking about someone who has been injured

catastrophically — a quadriplegic, someone who has a severe brain injury

— why is it that this Attorney General can stand here and limit their

ability to recover? That’s what we’re talking about. You know, there are

other forums, certainly, where we could talk about ICBC further, and we

certainly will.

If I could ask about joint experts here. At the committee stage on

March 5, we talked about the use of joint experts. One of the reasons

for this bill is to encourage, in the view of the Attorney General, the

use of joint experts. So I’d like to come back to that, in the sense

that…. How will it work when a party cannot know the value of a claim

without an expert opinion, yet that party is expected — and expects the

court — to factor in the value of the claim when the court is assessing

whether or not to allow additional experts?

[2:55 p.m.]

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

them in order.

Where is the $1 billion in savings? The savings at ICBC are

consistent with projections around the initial round of reforms. The

member will remember that ICBC was losing $1 billion plus a year and

that pre-COVID was projecting, finally, a break-even year based on the

minor injury reforms and an actuarially indicated rate of zero percent

for the increase to car insurance for the following year. So that’s

where the savings are.

They materialized. So, good news, but not enough. I’m not sure if

the member gets the kinds of letters that I do about the cost of car

insurance in British Columbia. I get a lot of letters from British

Columbians saying that car insurance is too expensive. People who write

and say that are right. We need to do better. So phase 2. Stabilize the

patient, phase 1. Phase 2, get the patient back up on the patient’s

feet. That means 20 percent savings for British Columbians and better

benefits through the reforms that we’ll talk about in Bill

The member wondered, because the $3,000 and 5 percent limits are

yet to be finalized, whether there were some idea that they might be

lower, that there might be less than $3,000 for an expert report or less

than 5 percent of the claim recoverable in disbursements. That is not

what’s under consideration. All that’s under consideration is the

potential for increasing those numbers.

The member speculated that those most affected would be those

catastrophically injured. In fact, for claims worth more than $1

million, 75 percent of those conclude within the 5 percent disbursement

limit. So they’re actually a category of significantly lesser affected

claims.

Then finally, the member wondered about how a court could possibly

apply the test if they didn’t know the value of the claim — the test in

sub 12.1(6), if they didn’t know the value of the claim, because the

party hasn’t been able to retain an expert.

[3:00 p.m.]

I’ve read it a couple times now just to make sure. Subsection

12.1(6)(

b) says: “without additional expert evidence, the party making

the application would suffer prejudice disproportionate to the benefit

of not increasing the complexity and cost of the proceeding.” So I’m not

sure where in that test it talks about the value of the

claim.

When I read it, it doesn’t. It talks about prejudice to the party.

It talks about the complexity and cost of the proceeding. But it does

not talk about the value of the claim. It’s not part of the

test.

M. Lee: I know that we canvassed some of this, as well, in terms of this,

previously at committee. So some of this may go back through that. But

just for the benefit of furthering the response to the question, how is

a court expected, then, to assess both the prejudice and the

benefit?

Hon. D. Eby: This is an example of the kind of test that judges are regularly

asked to apply under the rules of court and in other areas: whether a

matter is suitable for a

summary hearing, whether it’s appropriate for a

jury. Asking courts to evaluate prejudice versus the complexity and cost

of the proceeding is something that our judges are certainly capable of

doing and do on a regular basis.

M. Lee: I just wanted to continue to come to this in terms of what the

expectation would be between ICBC and a plaintiff. Of course, we know

that it is the burden of responsibility…. The onus is on the plaintiff

to prove their case. So the defendant, in terms of ICBC, has no specific

burden on them to disprove the case.

Therefore, ICBC does not have the same obligation to obtain

reports. When we talk about the kind of discussion we were having around

the limitation on expert reports, this merely is going to favour the

defendant in the sense that the limitation on expert reports makes it

more difficult for the plaintiff to bring about its case for full

recovery. Again, does the Attorney General not see this unlevel playing

field that’s being created by this limitation?

[3:05 p.m.]

Hon. D. Eby: It’s correct to say that, in our justice system, the plaintiff is

required to prove their case. This doesn’t change that. The rule applies

to both sides.

It’s important to note that if ICBC, as defendant, unreasonably

withheld consent to additional witnesses, they would be subject to costs

of the application that the plaintiff would have to make to add

additional expert witnesses. So there is a consequence for conduct by

the defendant that would prevent the plaintiff from presenting their

case appropriately, because the court will allow the witness, and the

costs of the application will be awarded against ICBC.

M. Lee: Well, I think it still gets to the concern around the position of

ICBC and the benefit that is actually going to accrue to ICBC in terms

of putting more handcuffs around plaintiffs in terms of their ability to

bring forward expert reports.

I know that we had also discussed, in terms of the disbursement

cap…. The Attorney General had previously indicated, in response to a

question I had raised, that there would be special costs available. If

ICBC, say, drives up the costs of litigation, special costs would be

available for the court to sanction that conduct and to increase the

amounts recoverable to the party that’s been aggrieved by ICBC’s bad

conduct.

I’d ask the Attorney General, given that he has referred to that

possibility over the last number of years, is he aware of any instances

where the court has indeed awarded special costs involving an ICBC

personal injury matter?

Hon. D. Eby: It has happened. It’s certainly rare. I will note that special

costs are not included in the disbursement limits. You know, I think one

of the reasons why it’s rare, despite the member’s assertions here in

this place…. ICBC does settle most injury claims out of court. I just

want to give him a few statistics about what happens when things do go

to court.

Of the 166 trial decisions received by February 2020 for trials

held in the year 2019, the judgments were for amounts less than the last

offer made by plaintiff counsel 55 percent of the time — that is, the

judge awarded less than the last settlement offer made by a plaintiff

counsel 55 percent of the time, so more than half of the time. When you

do the math, if ICBC had, instead of going to trial, agreed to the last

offer made by a plaintiff counsel in each of those cases, the result

would have been an additional cost of $26.5 million.

When you’re successful in 55 percent of the cases that go to court

at getting an award that’s less than the last offer made by a plaintiff

counsel, I don’t think it’s fair to say that ICBC is providing

unreasonable settlements, forcing cases to court when they’re not

merited. The numbers in that case would be that ICBC is regularly losing

trials. That’s not the case. They’re winning more than half. They saved

ratepayers $26.5 million by taking those 166 matters to

court.

[3:10 p.m.]

There’s really no merit to the suggestion that ICBC’s settlement

approach is inappropriate or that it’s increasing costs. Just the

opposite.

I hope that provides the member with some context.

M. Lee: I believe that the Attorney General is commenting and responding

to a point that I made much earlier in this committee process. I’m happy

to further engage with the Attorney General on that topic. But let me

just first say that in terms of special costs, the member had indicated

before that if there was a concern regarding items that would be

excluded from the 5 percent, there would be the ability of the court to

award special costs. But I understand from the Attorney General’s

response that it very rarely happens.

In fact, when I look at the review of case decisions, there’s

actually been only one in the last four years that awarded special costs

in an ICBC claim decision. It’s a very high bar where the judge, in

effect, in that case, found that ICBC disregarded disclosure rules,

where they failed to disclose evidence in respect of a jury trial and

they explicitly disobeyed the court order from the Supreme Court of

British Columbia. It’s basically egregious conduct. That’s a very high

bar. So between special costs and this 5 percent disbursement limit,

there is a big gap.

In terms of settlement offers, I just make a couple of points in

response. I do not have the same level of data that the Attorney General

has, of course. But in response to my concern, he is citing data,

clearly, that is coming from ICBC. Of course, that would stand to

reason. He’s also the minister responsible for ICBC. He has access to

all the data. And we’re talking about data coming from the defendant’s

side. How else would they know the amounts that plaintiff’s counsel

offered to settle at versus the amount that was ultimately adjudicated

by the courts?

There is a flip side to that conversation, which is this concern

about low settlement offers with a change in ICBC litigation strategy,

which was evident, as I understand, through the courts in early 2019.

And of course, that litigation strategy has led to further delays in the

courts — new trial dates having to be found when settlements were

withdrawn and replaced with lower amounts. Systematically, this was

being done.

We will still see many of those decisions and those claims to be

resolved, as they’re currently still backlogged in the courts,

pre-COVID, during COVID and now after COVID — at least in terms of the

restart, when I say after. But I do think that the Attorney General’s

response on settlements merely underlines my concern, again, that

repeatedly, through the course of this committee stage debate on this

bill, the focus has been on, first, a hope versus an expectation of cost

savings for ICBC; secondly, on ICBC’s insurance rates; and thirdly, on

ICBC’s financial status.

[3:15 p.m.]

Where do I hear the discussion about the rights of British

Columbians? This is the Evidence Amendment Act, not the ICBC recovery

act. Every single product reform that this Attorney General has brought

forward has stepped on the rights of injured British Columbians in so

many different ways. That has been the concern.

The discussion that I was raising with the Attorney General was to

understand the purpose of this bill. Clearly, again, in that May of 2019

report from ICBC — the most recent report, as I understand — there is an

expectation of cost savings from this implementation of this bill. So I

think that the response of the Attorney General really just continues to

demonstrate the focus of what truly is at stake here in this bill and

the concern, again, that I have around the limitations on the rights of

British Columbians that this bill represents.

I turn to further aspects of the bill relating to other expert

limits in Canadian jurisdictions. We had had a discussion relating to

the fact that, in response, the Attorney General had said that other

provinces have limits on expert reports. I acknowledge that. I

acknowledge the importance of sound administration of justice in our

province to be dealt with in a fair and efficient manner. I certainly

would support that. But when we’re talking about a bill that, again,

overreaches in this situation, that dips into and suppresses the ability

of injured British Columbians to access courts, to access the pursuit of

full compensation, that’s where my concern lies.

When we look at the Ontario equivalent, we understand that the

Evidence Act limits reports to three, unless the court permits

additional reports as being appropriate, and that, in looking at this

Evidence Act, it is up to the ability of the court to determine whether

more expert reports should be obtained. Under that legislation in

Ontario, is there a similar level of restriction on the court’s

discretion?

[3:20 p.m.]

Hon. D. Eby: The member’s right. There are some differences between the bill

that’s in front of the House and the existing limits in Ontario for some

specific reasons. One is that in Ontario, the limit is for all civil

litigation. This is exclusively for Motor Vehicle Act litigation in the

province. As a subset of litigation, the test speaks to factors that we

would hope the court would consider in deciding whether to allow

additional experts or not.

More importantly, in November 2007, the former associate chief

justice in Ontario, the Hon. Coulter Osborne, issued a civil justice

reform project report for that province that pointed out that the limit

in Ontario was not working. So rather than implement a limit here that

replicates the experience in Ontario and potentially the outcome, the

hope was to take Ontario’s experience, learn from it and provide a more

specific test for the court to consider in allowing additional expert

reports.

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

I’ll come back to another point that was raised in that response

separately. But just to complete the picture and the review, if we look

at other jurisdictions in Canada, other Canadian provinces like

Manitoba, New Brunswick, Saskatchewan, Alberta and Quebec, there are, in

those provinces at least, also limits on the number of expert reports.

Are there any of these jurisdictions that impose the level of

restriction on the court’s discretion that is imposed in this

bill?

Hon. D. Eby: The member chooses Manitoba and Saskatchewan, which is interesting

because, of course, they have public insurers. They’ve also transitioned

to no-fault. My preferred name for the system that we’re transitioning

to is enhanced care, because fault still matters under that system that

we’re proposing. But they do not have this issue, because they do not

have motor vehicle claims going to the court system at all in those

provinces.

For other provinces, certainly, they may have taken different

approaches. I’m not aware of a test that is similar to what we’re

putting forward here. But this is, without question, a made-in-B.C.

solution to a problem that we have in British Columbia.

[3:25 p.m.]

The hope is that, with this test, we can ask the court to direct

the court’s attention to the specific considerations of why this limit

should be in place. The bill reflects not just my opinion. Many far more

thoughtful people who really delve into issues of civil litigation in

the common-law world have looked at the issue of experts and adversarial

experts. It is their opinion, which I adopt, that additional experts

often have the effect of increasing the complexity and cost of a

proceeding without bringing sufficient benefit for the complexity and

cost that they bring.

By putting this specifically into the test…. Is this evidence

already in front of the court from another expert? Do you really need a

second expert to say the same thing to buttress the first expert? It

seems like a reasonable thing to ask the court to turn their minds to.

And then, can you make sure, before you allow another expert into the

courtroom, that you’re not increasing costs and complexity without

bringing a proportionate benefit to the proceeding — also a reasonable

thing, I think, to ask the court to consider.

The member talks about a dramatic…. I don’t want to misstate. He

talks about a significant restriction on the discretion of the court. I

don’t think so. This is at the judge’s discretion to determine whether

the cost and complexity that is brought by an additional expert is worth

it, whether the evidence is already addressed by another expert and

there’s no need for a second expert on the same point. It is not a

significant restriction on the discretion. But it does ask the court, it

asks the judge, to turn the judge’s mind to the very specific issue of

why this proposed limit is there and to consider that before allowing

additional expert reports.

M. Lee: I appreciate the effort of the Attorney General to walk back

through various points that we’ve been discussing in response. The point

that I’m first making here, though, in talking about other

jurisdictions, is that even when you look at Manitoba and Saskatchewan

under their Evidence Act, they have this restriction, whether it’s

needed or not. That’s in the act.

What I am demonstrating through this questioning is that none of

those jurisdictions has this same test, the same threshold around the

exercise of the court’s jurisdiction, which means that this

made-in-British-Columbia solution, just like the imposition of a cap on

disbursements recovery, is specific to B.C.

Here in British Columbia…. Motor vehicle accidents happen all over

this country, regrettably, for different reasons. It’s not specific to

British Columbia, yet British Columbia brings forward a made-in-B.C.

solution, one that restricts the exercise of discretion by the courts

and imposes this disbursement cap. That’s why I think that it’s

important for us to raise these questions about this bill.

Coming back to a topic which the Attorney General indicated in

terms of the Ontario legislation covering all civil litigation and not

just motor vehicles…. Again, we’ve talked throughout this committee

process about the importance of the role of the Attorney General, the

proper and fair and sound administration of justice in our

province.

Why is it that with the consideration of esteemed experts in the

legal field, as cited by the Attorney General over the last 15 years,

the reform to the Evidence Act is only specific to motor vehicles, motor

vehicle claims and disputes? What is it exactly about motor vehicle

accidents that’s different from other civil litigation claims in this

province? If the benefit of this legislation is so great, as the

Attorney General indicates, why is it that this bill only focuses on

motor vehicle disputes? Ontario doesn’t. B.C. does.

[3:30 p.m.]

What’s the difference? Well, as I’ve indicated through­out,

we don’t have in Ontario, I don’t believe, when that was brought in, an

Evidence Act change by an Attorney General who is also the minister

responsible for motor vehicle insurance. That’s the difference

here.

[S. Gibson in the chair.]

When we look at the concerns around the dual roles that this

Attorney General carries, it’s clearly evident in this bill and clearly

evident in terms of how this is presented to this House. When we look at

other common law jurisdictions, which were referred to previously in

committee, there are other limitations, similar in some respects, in

Australia and the United Kingdom. But for example, in England and Wales,

there is no hard limit. The limitations that are being placed here in

British Columbia are far more stringent than in other

jurisdictions.

When we look at the regulation-making power under

section 12.1(9)

of this act, they permit, as we have talked about, regulations that

would come forward to limit the amount of money an injured person can

recover per expert report, limiting the amount that can be recovered as

a percentage of the total amount of a settlement or court judgment and

limiting the number of experts or the number of reports that can be used

in court. We’ve heard discussion and references to those limits that

will be set by regulation.

Can the Attorney General confirm the further process which his

ministry will utilize to determine those limits?

Hon. D. Eby: The member asks in several different ways: why does this only

apply to motor vehicle litigation? Isn’t this evidence of profound

conflict of interest that I’m in as Attorney General and minister

responsible for ICBC? No, it’s not. You’ve got to flip to

section 2 in

the bill, where it expands it to all personal injury actions.

I do think that if you pulled someone in off the street and I had

to explain to them why we were starting with personal injury associated

with motor vehicle collisions, I think they’d get that. I think they

would have read in the Province newspaper about someone

receiving a court award that was eaten up entirely by disbursements from

their lawyer’s office. I think they would have heard about ICBC medical

experts who don’t see patients, who have an office over an airport

hangar, in the Globe and Mail . I think they would shake their

heads at the excesses of the system, and they would say: “Great. I’m

glad you’re starting with motor vehicle collisions.”

Only the critic could stand in this place and say: “Why are you

starting with motor vehicle…?” Seriously, why are we starting with motor

vehicle claims? What? Where has this member been? How many headlines

does he need about the problems with the car accident litigation tort

system in our province for him to understand why we would start with

motor vehicle claims?

[3:35 p.m.]

Putting aside the fact that his core assertion — that this is only

about motor vehicle claims — is patently incorrect….

Section 2 expands

it to all personal injury, brought into force by regulation. Putting

that aside, I don’t understand how you could be living in this province,

understanding how people feel about ICBC and our current car insurance

system, the court system and how it’s interacting in this way;

part 7

benefits that leave people who are in single-car collisions with a

moose, living in poverty because there’s no one to sue…. How can you

look at all these things and say: “Wow. It must be a conflict of

interest — why the member is starting with motor vehicle claims in

courts with this reform.”

We’ll go out in front of the Legislature. We’ll pull in some

member of the public, and we’ll say: “You know, we can start anywhere in

terms of this reform around expert reports. I think we should start with

this area that’s been on the front page of the Globe and Mail ,

from page of the Vancouver Province around excesses with

experts, or do you think we should start in some other area?”

I think the member would have his answer about why we’re starting

there. It’s not conflict of interest. It is just the excesses and the

problems with the current system that must be addressed —

period.

M. Lee: Well, I believe we can continue to engage on that topic, and

perhaps we will. But first, let me just ask if the Attorney General

could please answer my question.

Hon. D. Eby: Yeah, the member got me so excited with his first set of questions

in his question that I missed the last question, which is: how will this

number, ultimately, be set? It’ll be based on the information that we’re

able to gather about the actual value of disbursements paid out in

claims, as well as engagements with stakeholders.

M. Lee: When the Attorney General talks about engagement with

stakeholders, what will that process look like?

Hon. D. Eby: Typically, it involves asking stakeholders to provide feedback on

the proposal and then receiving that feedback and incorporating it into

the policy analysis. It can take any number of forms, but I imagine that

the engagements on this will be quite discrete and limited to legal

organizations like Trial Lawyers, Canadian Bar Association, Law Society,

as well as, of course, the Chief Justice of the Supreme Court, the Chief

Judge of the Provincial Court and the Chief Justice of the Court of

Appeal.

M. Lee: Prior to the introduction of this bill, what stakeholder

consultations have been held, including with those groups that the

Attorney General has referred to?

Hon. D. Eby: I’ve had a number of conversations with Law Society, Canadian Bar

Association and Trial Lawyers. We meet our obligations with respect to

engagement, where appropriate, with the chief justices and the chief

judge.

I can advise the member that the preliminary conversations that I

had with these stakeholders is what has led us to revisit those numbers.

In addition, we have also had an engagement with an organization that

represents a significant number of medical experts, and that has

provided some feedback to us as well. They also contributed to our

decision to revisit these numbers.

M. Lee: I think it’s important to understand the nature of stakeholder

consultation, particularly as it’s conducted in this context. That is

reform provided by the Attorney General and putting in place legislative

frameworks that will then set, by way of regulation, the specifics of

that legislation. The Attorney General has just outlined what that

stakeholder process will look like.

[3:40 p.m.]

Certainly those who are stakeholders…. Those who are in the brain

injury and concussion groups — organizations, not-for-profits around

this province which are supportive of those who have suffered serious

concussions and brain injuries — had understood, prior to the minor

injury bill, through statements made by the Attorney General that there

wouldn’t be an inclusion of brain injury and concussion in the minor

injury definition.

When the Attorney General talks about stakeholder consultation,

what assurances do we have here in this House, given the indications

that he’s provided on this bill, that the amount that’s been identified

for the limit on disbursements, or the amount for each expert report,

won’t be lower than 5 percent and $3,000?

Hon. D. Eby: Well, actually, it was engagement with stakeholders that led us to

include concussion in the minor injury definition and to do it in the

way that we did, which was a unique treatment compared with other minor

injury tests and psychological injuries that were similar. But if your

concussion resolves within 16 weeks, allowing you to return to the

activities of daily living, then it’s considered a minor

injury.

I don’t know. It’s possible, I guess, that stakeholders who were

talking about brain injury around the table expected that we would treat

concussion that resolved within 16 weeks as a major injury. I don’t at

all for one second pretend that it’s not a huge impact on someone’s life

to have a concussion that limits their daily activities for 16 weeks.

That obviously would be huge for a parent, for someone who is working.

However, for the court process associated with that, for the pain and

suffering award associated with that, the limit was set at 16 weeks as a

minor injury.

The terminology…. If I could do it again, I would change it,

because I don’t think the experience of a 16-week concussion is minor

for the person who suffers it. I don’t know what term I would use

preferably, but I think it is an unfair diminishment of the experience

of the person who suffers it. But what is meant by minor injury is that

the injury is relatively more minor to other types of injury, and,

therefore, the process and awards associated with it should be

relatively more proportionate — in other words, should be faster and

cheaper to resolve. That was the principle in the minor injury changes

that were brought forward under the previous bill.

The member feels that that was a great betrayal of stakeholders

somehow. It’s possible, I guess. I do accept that the terminology that

was used was not sufficiently respectful of the impact that a head

injury like that can have on a person’s life. I definitely believe that

the lesson that I took from that is one that will inform other work we

do. I don’t believe that it was a betrayal of the people that I said we

would not be including brain injuries as minor injuries, but there you

go. So we might have to agree to disagree on that one.

Regardless, I can tell the member that 5 percent and $3,000 is the

floor of what we are currently considering. If there are any changes, it

would be to increase the value of the recoverable expert report beyond

$3,000 or the percentage of the claim beyond 5 percent.

[3:45 p.m.]

We will be engaging with stakeholders. Because we engage with

stakeholders does not mean whatever number they put forward is the one

that is adopted, ultimately, by government. I will not provide any

assurance like that. What I can assure stakeholders that we engage with

is that their submissions will be taken very seriously, because our goal

here is a fair process that respects that people do need to present

expert witnesses, that they will need to recover disbursements to do

that to prove their case.

However, we need to restrain the excesses, so that will be the

goal of the engagement. It will not be a large-scale, online

engagement-type process but a targeted engagement to people who work in

this area.

M. Lee: I think the concern around the amount of details that need to be

dealt with by way of regulation — as we will see in the Bill 11 debate

to come and as we’ve seen in the minor injury bill and currently in this

Bill 9 — all goes back to the same consideration as to how that level of

stakeholder consultation is done and what representations and

understandings are made.

I did not use the word “betrayal.” But it’s not just my viewpoint.

When I talk to other stakeholders who were involved in those

consultations, they had a different understanding and assurance from the

Attorney General that it would not be inclusive of brain injury and

concussion. Now there is certainly detail in that, in terms of the

16-week period.

In terms of a class of injury, as the Attorney General has

admitted here and as he admitted back in the days when we were debating

the minor injury bill, if he had to do it all over again, he wouldn’t

call it “minor,” because it isn’t. It captures a great percentage, 80

percent or so, of minor injury claims in this province. So it does

matter, in terms of the definition and what is put in place, after a

bill has passed, by way of regulation. It does matter. The details do

matter. This is my concern regarding the stakeholder consultation

aspects.

I wanted to come to some remaining points on this

section 1 around

the retroactive nature of the application of this bill. As we see in

section 12.1 — in response to some previous questions I had raised at

committee level, concerns around how those accident victims who are

currently in a litigation proceeding or claim proceeding with ICBC —

this is a significant change.

When the three-expert rule was ruled unconstitutional, the

Attorney General had indicated in our earlier committee process in early

March that “well, it shouldn’t have been a huge surprise, because I

telegraphed this in several ways that this was our intention to do so,”

and that based on that expectation, that telegraph, claimants ought to

have been informed about their legal rights with this cut-off date of

February 6, 2020.

Let me ask and give the Attorney General an opportunity, again, to

explain how and whether he believes that telegraphing, which is the term

he utilized, is fair enough to those British Columbians who have been

injured in motor vehicle accidents.

[3:50 p.m.]

Hon. D. Eby: The goal was to make sure that this rule actually had some effect.

If the member is on to

section 3 of the bill, which amends

section

12.2…. In it, there are a couple of deadlines by which you can be

exempted from these rules. One is that you can have the expert report,

have it be served before February 6, 2020. Now, February 6, 2020, is the

date that this was announced, so if you hired an expert, got the report

and served it before the day this was announced, there’s no

issue.

The second way you could exempt yourself is if you’ve got a notice

of trial filed and served before February 6, 2020. You’ve got your court

date. You’ve filed and served your notice of trial before February 6,

2020. No problem. That was the date of the announcement, so you’ve

already got your trial date. You’re planning.

For those folks who didn’t even have a trial date, they hadn’t

served the expert report, they are now subject to this new rule. It’s

not speculative — that there would be a rush on the registry, for

example. If the notice of trial was some later date, there would be a

big lineup of people trying to file and serve notice of trial. We saw it

with the minor injury legislation. There was a rush on the

registry.

The goal was to be fair to the people who had trials coming up:

they had their trial date set; they were preparing for trial before the

rule was announced — and for those people who had actually retained an

expert and served the expert report before the date of the announcement.

Following the date of the announcement, because you have notice of it,

you are subject to those new rules and the proportionality test that the

court will do, in terms of allowing additional expert

reports.

M. Lee: Recognizing that the so-called telegraphing occurred after the

ruling by the courts that rule 11-8 was unconstitutional, was there any

telegraphing at that time about a disbursement cap?

[3:55 p.m.]

Hon. D. Eby: Yes, I can advise the member that the February 6 announcement also

included the proposed disbursement limits of 5 percent and

$3,000.

Also, it may be of interest to the member that there are a

significant number of people who would have had trials go ahead during

the COVID period. They had notices of trial issued for that period. If

you have had any…. The legislation, as proposed here, is if you have had

any notice of trial filed and served before February 6, then you are

excluded from these rules. It doesn’t matter whether your trial went

ahead or not because of COVID or otherwise. As long as there’s been a

filed and served notice of claim before February 6.

M. Lee: Just to look at the other date that is there in terms of trial

dates that are set for after October 1, 2020. So there would be injured

British Columbians who have been in dispute with ICBC for several years.

British Columbians that are working through that process, with severe

spinal cord or brain injuries, who have been presumably working within

the rules of court that govern their claim and moving forward. But if

their trial date is set for after October 1, 2020, there is a

significant impact on these proposed changes, on those injured British

Columbians.

What assessment has the Attorney General Ministry done on the

number of claimants that would be affected by this rule change? First,

in respect of motor vehicle claims, in which ICBC is the defendant.

Secondly, in terms of personal injury claims.

Hon. D. Eby: That October date is nine months before trial. The goal was to try

to capture those folks who were preparing for a trial date that was

reasonably imminent within the next nine months — with their expert

reports — to exclude them from this rule process.

[4:00 p.m.]

We don’t have the numbers of matters that would be captured here.

It’s important to note that those matters that were adjourned because of

COVID are not affected by this. If they qualified before and they were

adjourned, they still qualify now.

M. Lee: If we have a British Columbian with a brain injury who has had an

assessment scheduled with an expert in March or April of this year,

despite following the rules in again moving their claim through the

process, they’re now subject to a whole new set of rules, as we’ve been

talking about here. How is that fair to that individual?

Hon. D. Eby: If a party necessarily and properly incurred the expense before

the date of the announcement, February 6, 2020, for reports from

experts, the regulation may not limit the disbursements payable to that

party. I’ll refer the member to sub 12.2(3)(

a) for that. If it was

incurred after it was announced, the member is right. After the

announcement, those expenses would be subject to the new rules. But then

it had been announced, so it is fair.

M. Lee: I think I just heard the Attorney General say that if it had been

announced, it’s fair. But we’re talking about individuals who’ve been in

the process of their claim, individuals who may have been fairly injured

some years ago, because we know that many of these claims take a number

of years to get through the process. How is that fair to an individual,

who has been already going down that road to seek recovery, for this

rule change to occur?

Hon. D. Eby: Again, for the expenses incurred before the announcement, a

regulation under sub 12.1(9) must not limit the disbursements payable.

For expenses incurred after the announcement, they’re subject to the new

rules and, of course, also the tests that we’ve spent some time going

over — where the court may allow additional expert reports, subject to

the proportionality test that we set out there. I’m not sure I have

anything else to add to that.

Section 1 as amended approved.

section 2.

[4:05 p.m.]

M. Lee: In terms of

section 2, as the Attorney General pointed out in a

fairly passionate response to a distinction I was drawing, let me just

first ask: from a drafting point of view, how was this

section drafted

in this manner?

Hon. D. Eby: The drafting approach here is that the

section essentially acts as

if 12.1 is already law and amends it to expand application beyond motor

vehicle accidents alone to all personal injury proceedings. The effect

of it is that when a regulation is made to bring this

section into

force, it will expand the application of the rules and the test that

we’ve been talking about beyond simple motor vehicle accidents to all

personal injury claims. That is the effect of this section.

The timing of implementation of this will depend very much on how

12.1, unamended, performs to address some of the concerns that I’ve

articulated about how expert reports are used in court currently and

where there’s an opportunity for improving efficiency of court

proceedings. If it seems to be going well and addressing the issue, then

we would broaden it. And if it doesn’t seem to be addressing the issue,

then we would need to be revisiting it, not broadening it.

M. Lee: Thank you to the Attorney General for confirming what is a staged

approach — first with the changes to be brought in place under

section 1

of this bill and then, subsequently at a later date, a broadening to

include all personal injury. At this time, what assessment on impact, if

any, has been made on the broadening of this restriction on expert

reports to personal injuries?

Hon. D. Eby: The assessment is going to wait for the implementation of phase 1

to see how it is performing, as I said in the first response. What is

the reality on the ground, in terms of what it looks like after

implementation? If it is working well and it seems like it’s achieving

the goals that I know many people share around how experts are used in

our court system, then we would look at expanding it. That would be the

analysis: how is it actually performing in the court system? Until it’s

actually implemented, we don’t have that information.

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

critic is agreeable.

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

minutes.

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

[S. Gibson in the chair.]

M. Lee: I’m resuming the discussion about

section 2. As the Attorney

General just indicated, there will be a staged approach here in

reviewing the implementation of the rule changes under

section 12.1, as

they pertain to motor vehicle injuries, before extending it and

broadening it to personal injuries, more broadly. The point that I was

making earlier….

[4:15 p.m.]

Perhaps I can ask one other question before making that point. Is

the area of change to the Evidence Amendment Act…? Were there any other

areas considered — in terms of personal injury, motor vehicle or any

other areas of the law — for claims of this nature, for a rule change

under the Evidence Amendment Act?

Hon. D. Eby: The reason for the focus on personal injury was that it seemed

that the potential for a similar rule to apply across personal injury

proceedings was more amenable to the tort litigation approach, generally

— that cases are broadly similar to each other and that considerations

are broadly similar — compared, say, to a contract dispute of some kind

or to construction litigation.

With that said, there is active consideration around civil justice

reforms. Coming out of, in particular…. In front of mind is the COVID

backlog. We have a couple of different groups that are active, providing

advice to government and weekly engagements, in some cases, and monthly

engagements, in others, with the chiefs of the various courts as well as

with the various legal organizations — the Canadian Bar Association, the

trial lawyers and the Law Society — around potential reforms to help

resolve the backlog by improving efficiencies in the court system. That

is a very active discussion that’s underway.

I can advise the member that there are active policy reforms being

considered but at far too premature a stage to announce.

For obvious reasons, there’s a great deal of urgency around doing

what we can to keep matters out of court, if we can, through early

resolution, to narrow issues, once matters do get to court, so that

court time is only used for those areas of true dispute and to make sure

that people are able to access courts in various ways if they have

compromised immune systems or are otherwise challenged to attend

personally in court. For example, they’re in custody. There’s a lot of

work happening on that side.

M. Lee: I certainly acknowledge the significant amount of justice reform

policy work that continues to go on, including the advancement of how

the justice system can operate more effectively remotely and through the

use of technology, even during this COVID-19 time. Certainly, in terms

of other areas, I look forward to having discussions about further

reform.

[4:20 p.m.]

I would suggest, though, that the conversation we’ve been having

here…. The reason why, of course, I had focused on the changes in

respect to vehicle injury proceedings is, of course, because of two

reasons. One is the way that this bill has been characterized by the

Attorney General and the way it has been positioned in the course of

other reforms in order to address the challenges with ICBC that the

Attorney General is dealing with. This has been referenced as a benefit,

as a way to reduce costs.

We went over the ICBC communications around this. This has been

the way this bill has been framed. Regardless of the need identified in

various media pieces, there are certainly other references to the need

for the continued access to our justice system in a fair, accessible

way.

The second reason, of course, is the bill itself. As we just

reviewed in the conversation around

section 1 of the bill, this is what

is changing. Government can always continue to expand the scope, as they

did with the civil resolution tribunal put in place by the previous

government — expanded the jurisdiction of that tribunal in many ways

that, perhaps, it wasn’t designed to do in the first place. So there

continues to be challenge in that. But in this case, we’re being asked

to approve a bill that deals first with motor vehicle

accidents.

This is what this bill focus is. So when I made the earlier

points, again, about why it is the consideration around the changes to

our Evidence Act, and why the focus here…. I get the fact that ICBC is

the chief litigant of this province. It is a significant cost driver for

drivers of all backgrounds, all income levels — students, those who rely

on driving for their income, to get to their jobs, to get to their

schooling. We know how important this is, but also how important this is

when you get into an accident, when your life and your ability to fully

function in the way that you wanted to do has been taken away because of

a driver who was careless, negligent. This is the reason why this

matters.

Again, my concern for the way this bill has been brought forward

and the decision to focus on vehicle injury proceedings first is not so

much that there isn’t an understanding, that there’s significant

litigation and volume around this, and cost. But it’s a recognition that

we have the Attorney General of this province changing the rules

midstream on a retroactive basis for claimants that have been at this

for many years. This is the concern.

I’ve been going through this bill indicating areas of concern that

structurally still exist — not just with this bill. That concern will

continue in terms of the confidence that British Columbians would have

in the ways that this government is proceeding, changing the way in

which British Columbians can bring forward their claims, the rules of

court, in the manner which they’re doing here, in a way that is a

made-in-B.C. solution that is far more restrictive than any other

jurisdiction in Canada.

[4:25 p.m.]

With that, I have and continue to have significant concerns about

this bill. I’m not in support of it.

I would encourage all members of this House to consider what’s at

stake here and to consider what is occurring here, because this Attorney

General is in conflict. Whether we want to debate and continue to debate

that conflict…. I would say from a perception point of view, all British

Columbians need to have confidence in the due administration of our

justice system. It is a real concern when we have an Attorney General

who is changing those rules to benefit ICBC, as he’s the minister

responsible for that too.

Hon. D. Eby: Thank you to the member for his closing remarks. I mean, I’m not

surprised the member is going to vote against this. The member voted

against Bill 11 too, on second reading, with his colleagues — the same

bill that’s going to provide 20 percent savings to British Columbians on

their car insurance and some of the best benefits in Canada. Okay. The

member is opposed to these things. Difficult to know what the member

stands for.

He says he stands for low-income British Columbians, but I want to

encourage him to seriously question whose side he is on when he stands

in this place and votes against reforms aimed at curbing what has been

widely commented on by legal experts of various stripes — not just in

British Columbia; across Canada, the United Kingdom and Australia — as

an excess that needs to be dealt with in the civil litigation

system.

As he stands up and votes against reform in this area where it’s

badly needed, here is a story about a low-income British Columbian under

this current system. ICBC paid out $127,362.09 for an accident claim.

The amount that the person walked away with was $22,874. What happened

to the rest of the money? Expert reports — nine of them in all — from

doctors, psychologists and rehab consultants cost more than $28,000. One

doctor’s report alone cost more than $11,000; legal fees in the case,

$25,000; $9,000 of reprographic charges; $6,000 for transcription. And

$13,000 on a 10 percent interest rate charge on before-settlement

expenses left this person with $23,000 in cash.

When the member stands up and opposes this bill that attempts to

put some level of proportionality on expert reports, one small piece of

that itemized bill that cost this person more than $100,000, of their

$127,000 settlement…. The member stands up and says: “I encourage all

members of this House to vote against this to defend low-income British

Columbians from this terrible legislation that’s proposed.” Well,

goodness, who is the member defending? He is defending the nine experts

who billed $28,000, one of them more than $11,000, for a $128,000

claim.

Low-income British Columbians? And he wants to do it by increasing

car insurance costs for all drivers in the province to pay unlimited

experts for people in injury claims. We’re not proposing to get rid of

experts. We’re not proposing to do that at all. We’re saying: “How about

three, okay?” and “You can have more if it’s going to be unfair to limit

you to three. Just go to the judge, and if ICBC doesn’t agree with you

and they lose, they have to pay the cost of the application.” Not

unreasonable.

[4:30 p.m.]

This system, this whole system the member has already voted in

favour of preserving by voting against the reform bills again and

again…. He wants to preserve it. I don’t know why. But the member should

not delude himself that he is protecting low-income British Columbians

with these votes. He is protecting a system that is broken, and it’s

inexplicable to me why he would defend this system.

[R. Chouhan in the chair.]

In any event, it’s important to underline one other piece, which

is that this bill is not exclusively a motor vehicle injury bill. It

starts with motor vehicle injuries because of articles in the

Province like I was reading from that are corroding the

public’s confidence in our justice system. It starts with motor vehicle

injuries.

But remember, right now we’re on

section 2, which is explicitly

about expanding it to all personal injury proceedings. Yes, B.C.’s

initiative is different than other provinces’, but because B.C. is

different than other provinces…. We can learn from the experiences of

places like Ontario, where they had a less restrictive rule that didn’t

work. We want a rule that works to control these things.

He is insistent that this is improper. Okay. I hear the member. I

disagree with him. I would say I would be remiss in my duties to fail to

recognize the impact of the public’s confidence in the justice system

when someone goes to court to get $127,000 and walks away with $22,000

because the cost of the proceeding was $105,000, including a single

$11,000 expert report.

I encourage all members to vote for this to support low-income

British Columbians, and beyond that, to support public confidence in our

justice system and to address a long-standing issue in our justice

system.

Section 2 approved.

section 3.

M. Lee: Well, you know, I think that we are opening and closing in various

ways through this committee stage, and I would just say in response that

what I’m troubled by, of course, is the ongoing conflict. That is the

way that this government and the Premier and the Attorney General have

positioned ICBC — over and above everything else. So who is protecting

the rights of injured British Columbians here? That’s what I’m asking.

That’s what my concern with this bill is.

The way that it’s been presented, the methodology and the way it’s

been approached, is informed somewhat, of course, by rule 11-8, when the

Attorney General unilaterally brought that forward, and it was ruled

unconstitutional, and then brought this legislation forward in ways to

address some of the challenges identified by the chief justice in that

Crowder decision.

What we’re finding, of course, is that this bill goes over and

above and beyond. It’s going much further than any other jurisdiction in

this country. It’s not just about the income level of British

Columbians. It’s all British Columbians — to have those rights, to seek

that redress, to seek full recovery.

[4:35 p.m.]

This bill, through the limitations around experts and the way that

it’s done through disbursement caps and a per-expert limit, goes far and

above and beyond the restrictions in other jurisdictions, as I’ve said.

This is the concern. But fundamentally, it just demonstrates again the

conflict that’s in place.

If the Attorney General was bringing forward this bill separately,

that might be a different discussion. We’d still be having discussions

regarding the nature of this. But when it’s been done in the colour of

ICBC, when all the data around disbursements is only centred on motor

vehicle proceedings, there is no data here that the Attorney General is

able to share with us about personal injury.

The impact assessment, really, of that 5 percent disbursement cap

has been around motor vehicle proceedings. That’s the focus here. As

much as the Attorney General suggests that the effect of this bill would

be broadened in the future, we don’t know that. The focus is on motor

vehicle claims. That’s the purpose of this bill, and it should be with

an expectation of cost savings. That’s the way it was positioned before.

But again, it’s a hope. It’s a hope when discretion of the court only

goes to the number of experts, not to the disbursement cap or the amount

recoverable per expert report. That is set by regulation.

With that, again, I am not supportive of this bill and continue to

have concerns regarding the Attorney General’s conflict.

Hon. D. Eby: Now we hear from the member: “Well, maybe. You know, I’m not

totally in favour of the experts. Maybe if this was separate from motor

vehicle claims, we could have a discussion about how to fix the expert

problem.” What? What? Okay. You know, either there’s an issue with

experts or there isn’t.

This bill deals with the issue of experts. Now the member, on a

point of principle known only to him, that the Attorney General, the

chief law officer of the province, involved in all of the litigation

involving government, can’t deal with the rules affecting litigation

that he may or she may have responsibility for…. What? Unprecedented

allegations of conflict.

In any event, he now says that he’d be willing to talk about

restrictions on these outrageous expert reports if the context were

different. If certain, you know…. Maybe then he’d be willing to stand up

for low-income British Columbians and against people who charge $10,000

for a single expert report in litigation and take that out of the

settlement of an injured person. Okay.

Well, this side of the House has chosen a side which is the same

side as every commentator that has identified major issues with expert

reports in our court systems — driving costs, complexity, unnecessary

adversarialism without improving the outcomes of the court system. We’re

going to bring those costs down in all personal injury matters. We’re

going to deal with the expert problem.

Unfortunately, without the votes of the other side, because the

context isn’t quite perfect, the way they’d like it, to vote on this

bill and have the discussion…. I don’t know what to say. Either there’s

an issue, or there isn’t. Either you support the mechanism or you don’t.

But this is sort of an objection not about the bill, the mechanism, the

issue of experts. Apparently it’s an objection about something more

ephemeral.

Well, all I can say is thank goodness there is a government

willing to tackle these issues. I’m very grateful for the support of the

Third Party and the independent member who recognized the need to tackle

these issues, because it’s a minority parliament.

Section 3 approved.

section 4.

[4:40 p.m.]

M. Lee: Well, I think the Attorney General continues to demonstrate his

ability to put words out there — words that I didn’t say. I don’t think

we need to reiterate the entire committee proceeding. I think it’s quite

evident that I have significant concerns about this bill and the

restrictions in the way that it’s framed, regardless of whether it’s for

motor vehicle proceedings or not.

Secondly, this is unprecedented. That is a word the Attorney

General used. As I’ve said in this House, it’s unprecedented that we

have the Attorney General of this province also serve as the minister

responsible for ICBC. That’s never happened. There isn’t that conflict

that arises in other provinces of this country. This is not an ephemeral

discussion. This is a fundamental one. And as a result, it does colour

the review of this bill, as we’ve talked about throughout.

Unfortunately, we don’t have that opportunity to have a discussion

of this bill without that conflict overhanging all of this. So in terms

of the measures, the restrictions that are put out in this bill, they’re

clearly to benefit ICBC. We understand the overall cost structure, but

the fact of the matter is that there is a balance. There’s a balance

between both the plaintiff and the defendant here, not just the

defendant.

These are the concerns that we have with the bill. I know that the

Attorney General will continue to want to talk about what’s happened in

the past. But the fact of the matter is that this is his responsibility

today. This is the responsibility he agreed to take on when the Premier

asked him to serve both as the Attorney General and the minister

responsible for ICBC. How one individual can divorce himself in his mind

from those two responsibilities….

There ought to be someone who is responsible as the chief legal

officer for this province. That’s the role of the Attorney General. It’s

not to be responsible also for the chief litigant of this province — the

defendant — when we’re talking about individual British Columbians who

are having to take on a large Crown corporation — a corporation that, as

a defence, doesn’t have the same limit on it in terms of its

resources.

This is the concern, and I will continue with this discussion as

we look at the next bill.

Hon. D. Eby: I know that I did this. I shared with the member, the last time we

were here, the story of Suzanne Anton, Attorney General for the B.C.

Liberals, going into the rules committee and announcing that she

wouldn’t make the rule changes she’d already agreed to because she

“didn’t realize they would cost ICBC more than $250 million,” which

caused the whole rules committee to resign en masse.

I know the member knows that happened. I know he knows it isn’t

ancient history. It was 2016. It was the second-last year of the last

administration of the government. He knows those things happened. So for

him to stand in this place and make the kind of accusations he does

about what the role of the Attorney General should be, knowing that

history of the last B.C. Liberal administration and how they conducted

themselves around the rules committee, is a little bit much to

take.

Section 4 approved.

Title approved.

[4:45 p.m.]

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

amendment.

The Chair: Motion carried.

G. Kyllo: Mr. Speaker, I was watching the screen and counting the votes, and

you announced that the motion passed before all the members had even put

up their voting cards. From my count, the nays have it.

The Chair: Member, the procedure is that if any member disagrees with the

Chair, call division. I didn’t hear that call at all.

G. Kyllo: On division.

The Chair: On division. That’s fine.

Motion approved on division.

The committee rose at 4:46 p.m.

The House resumed; Mr. Speaker in the chair.

Reporting of Bills

BILL 9 — EVIDENCE AMENDMENT ACT, 2020

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

amendment.

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

Hon. D. Eby: With leave, now.

Leave granted.

Third Reading of Bills

BILL 9 — EVIDENCE AMENDMENT ACT, 2020

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

[4:50 p.m.]

Mr. Speaker: Members, sorry for the delay. The question is third reading of

Bill 9, Evidence Amendment Act, 2020.

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

division.

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

stage.

Committee of the Whole House

BILL 19 — COVID-19 RELATED

MEASURES

ACT

(continued)

The House in Committee of the Whole (Section

B) on Bill 19;

R. Chouhan in the chair.

The committee met at 4:52 p.m.

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

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

[R. Chouhan in the chair.]

section 8 (continued) .

Hon. D. Eby: I seek leave of the House to stand down the amendment to

section 8

and resume debate on

section 8.

Leave granted.

A. Olsen: Just to pick up, sort of, where we left off yesterday, I had

questions around

section 8, which is the

section that adds 10.1 and 10.2

to the Emergency Program Act.

Maybe I’ll ask this first question again.

Section 8 creates a new

permanent

section in the EPA, the Emergency Program Act, that creates

new powers and new tests in a piece of legislation that’s created

ostensibly as a temporary stopgap measure due to the novel challenges of

COVID-19. Why are we making permanent changes to the EPA?

Hon. D. Eby: It’s not the intention to create any new powers here. These are

powers that already exist under the act and were, in fact, used by

government during the most recent emergency. What it does is it removes

them from the Solicitor General and passes them to cabinet. This is a

best-practice approach, modelled in part on Ontario.

Where you’re going to override a statute, you probably want to

have the minister who is responsible for that statute participating in

the decision-making around overriding it. But also establishing a new

proportionality test…. It’s a significant step to override an existing

statute in an emergency. So the government needs to be able to explain

itself to a third party, namely the courts, that there is

proportionality in the step that was taken, the impact of the step that

was taken in the emergency and the impact of overriding an existing

law.

There is a new restriction in place, a new requirement around

government to have to explain itself if the order is challenged later in

court, a movement of the power away from one member of cabinet to

cabinet as a whole. That is the intent of the section.

It also addresses a concern of the Ombudsperson that there needed

to be more explicit clarity around the authorities and any restrictions

on overriding statutes or limitation periods. So it addresses the

concern of the Ombudsperson as well.

The reason for this being permanent in nature is for it to be

there if there is another non-COVID emergency between now and the

completion of the modernization work around the EPA.

A. Olsen: Is it the government’s view that the parts of 10.1 and 10.2 are a

better outline of the authority the government already possesses? And

just to be clear, there are no parts of this that are creating new

powers or authority.

[5:05 p.m.]

Hon. D. Eby: There is a slight refinement to my answer. I thank the member for

his question. So 10.1 is an outlining of the authority that the minister

already has and, as I said, places it with cabinet and puts restrictions

on its use — that it has to be proportional. That is all existing

powers. But 10.2 is new in that it allows the enforcement mechanisms of

the home statute, the one that’s being modified, to be used instead of

Emergency Program Act defence provisions.

I wouldn’t regard that as a new power. But it is, kind of, in that

without it, you’d need to rely on the Emergency Program Act defence

provisions. With it, it gives you an option to also use the enforcement

mechanisms of the statute that’s been modified.

In that sense, just to be sure that I’m completing my answer to

the member about new powers, it is a modification to existing

process.

A. Olsen: Moving to sub (3), can the minister explain how the benefit test

outlined in sub (3) operates? Can he perhaps explain the wording that’s

used in the provision? Why are we comparing the benefit of the provision

remaining in place versus the benefit of changing it, instead of looking

at the cost of changing it?

Hon. D. Eby: It is unusual language in the sense that when you’re just talking

to someone, you might say: “Well, what’s the benefit of doing X versus

the cost of the status quo?” This is assuming that the status quo has a

benefit — that this is a duly enacted law by the Legislature and that

certainty that it exists and that it applies is a benefit to the public.

You have a benefit of just leaving the law as it is. Any kind of an

override or a change to that through an emergency order is going to have

to demonstrate that the benefit of that override is proportionate to the

benefit of leaving the law as it is. That’s why you have, essentially,

comparing a benefit to a benefit.

It’s important to note that “proportionate to” doesn’t mean

equivalent. It means a balancing test of the risks and benefits on both

sides, either leaving the law as it is or intervening with the emergency

order. If you make the regulation to change the enactment and that has a

very small benefit compared to the benefit of leaving the enactment as

it is, then the regulation wouldn’t stand.

I do understand that it’s not typical language and where the

member’s question comes from, but it is meant to underline to a

reviewing court or to cabinet that there’s a benefit to leaving the law

as it is. You’d better make sure that the benefit of your intervention

is proportionate to just leaving the thing alone, because you’re going

to have to, potentially, explain that to a reviewing court

later.

A. Olsen: What types of constraints does it place on the exercising of

powers under subsections (1) and (2) of 10.1?

[5:10 p.m.]

Hon. D. Eby: It’s roughly the same answer I gave. The main constraint it places

is that it tells cabinet that in making this order, they need to be able

to show to a third party that’s independent of government that the

benefit of the emergency order makes sense and is proportionate to the

intervention.

An example would be if you make an emergency order, under the

Strata Act, that you don’t have to have your AGM because there’s a

restriction on meetings or gatherings of 50 people or more. Clearly,

there is a benefit to leaving the Strata Act as it is. You have to have

the AGM.

This is a law that was passed by the Legislature. There is a

benefit to that. But there is a far more significant benefit to saying

that you can have this meeting virtually because there’s a public health

order that makes it illegal for you to enact a meeting as described in

the Strata Act. So the benefit of the emergency order far outweighs the

benefit of leaving the law as it is.

As an example, if you can’t make that kind of comparison and

illustrate to a third party that the benefit of the intervention

outweighs the benefit of leaving the law as it is, then you run the risk

of having the regulation or the emergency order overturned. That,

obviously, would create a significant amount of uncertainty and

problems. It’s meant to provide that connection between the impact of

the intervention and the impact of intervening in a democratically

passed law.

A. Olsen: Can the Attorney General point to how any other legislation that

uses the same wording for a benefits test is being used in this

section?

Hon. D. Eby: I’m advised that the Evidence Act uses a similar kind of

proportionality test, but the explicit language of this test is

different than that. It’s just similar.

The language here is drawn…. I’m advised that drafters looked at

other jurisdictions and their tests and safeguards that they had in

place as well as academic literature on emergency powers. I don’t have

specific examples for the member, but I’m sure if you were particularly

interested, I could find that.

The simple answer to his question is no. There is not a precedent

for using exactly this language in either B.C. statutes or other

emergency statutes that we’re aware of, although it is very much of a

species of safeguards that are in emergency powers legislation around

the world to ensure that interventions by government, outside of the

typical democratic process, during an emergency are proportionate and

make sense in the circumstances.

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

Are there any other constraints or tests on how the

Lieutenant-Governor-in-Council can exercise powers provided to them in

section 10.1?

[5:15 p.m.]

Hon. D. Eby: The first safeguard is that there needs to be a state of

emergency.

Section 9 says that the minister has to be satisfied that

there is an emergency. The definition of “emergency” talks about that

there’s a present or imminent threat that requires urgent coordination.

For the exact language, I direct the member to the definition of

“emergency” in the act. So first of all, you have to be able to justify

that there is, in fact, an emergency and that a state of emergency was

properly declared.

The second safeguard is that the regulation-making authority is

only able to be exercised for the purposes of preventing, responding to

or alleviating the effects of the emergency. So that’s another threshold

requirement. First of all, you need there to be a demonstrable

emergency. Then, when you’re using the regulation power, you can only do

it to prevent, respond to or alleviate the effects of that same

disaster, not for other purposes.

Then there’s a third limit in place, which is the proportionality

test. When you intervene…. You’ve got an emergency. The regulation is to

respond to it or alleviate the effects of it or prevent it. Your

intervention also has to be proportional. We spent time talking about

that — if the benefit of making the regulation is proportionate to the

benefit of just leaving the law as it is.

Finally, all of this is overseen by the courts. They could

potentially overrule or overturn a declaration of a state of emergency

if the test wasn’t met, the regulation-making authority was not used for

the purposes required by the act or the intervention was not

proportionate.

Those are the tests and safeguards in place around how the powers

are proposed to be exercised.

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

responses.

I think the challenge that we’ve been working through since the

bill has been tabled is this balance. It was articulated, I think quite

well, yesterday. One of our colleagues mentioned that it’s important

that government be given the opportunity to be able to respond when a

response is needed. That, I think, is very important, and we saw those

powers being exercised quite responsibly due to COVID-19.

There is also the job, which we have as legislators, to make sure

that we have that level of oversight, recognizing, with gratitude, the

amendment that we will be voting on later today with respect to the

reporting of the Legislature.

One final question to the minister. Does the minister feel that

there’s adequate legislative oversight for the powers exercised by the

government in a state of emergency?

Hon. D. Eby: Yes. I think that the already existing oversight was improved by

the amendment brought forward by the Third Party to require reporting to

the Legislature of any emergency order through the Speaker’s

office.

I agree with the member. It’s important to respond quickly in an

emergency and to balance that with transparency and accountability

through the Legislature. The practices to date, I think, demonstrate our

government’s commitment to that. This bill will buttress that and

provide greater accountability and proportionality tests and more

oversight of some of the powers that the Ombudsperson has expressed

concern about.

M. Lee: We talked about this bill in committee yesterday. It’s certainly

my view that there is not the adequate…. If asked the question…. Is

there adequate legislative oversight? I don’t believe there

is.

The reporting amendment that has been added to this bill merely

tables a report but doesn’t actually give any teeth to it, other than

questions that might be asked in QP, questions that could be asked

already based on emergency orders that are already out there under the

Emergency Program Act. There is no opportunity in the amendment that was

passed yesterday to 3.1 of the bill.

[5:20 p.m.]

Having said that, that does go back to the concerns around this

particular

section 8. We talked at length yesterday of sub 10.1(1), but

sub 10.1(2) also does not have the term “necessary” as it is spelled out

in the existing 10.1 of the Emergency Program Act. I know that the

Attorney General has referred to, as he just did, the proportionality

test under sub 10.1(3).

Let me first ask: why is it that in this provision, sub 10.1(2),

the determination of necessary is not stated here when it i