Third Session, 41st Parliament

(2018) OFFICIAL REPORT

OF DEBATES

(HANSARD)

Thursday, April 26, 2018

Afternoon Sitting

Issue No. 127

ISSN 1499-2175

The HTML transcript is provided for informational purposes only.

The PDF transcript remains the official digital version.

CONTENTS

Routine Business

Introductions by Members

Orders of the Day

Committee of the Whole House

Bill 24 — Miscellaneous Statutes Amendment Act (No. 2), 2018

S. Gibson

Hon. M. Mark

M. Lee

A. Weaver

Hon. D. Eby

S. Bond

Hon. C. James

D. Barnett

Hon. D. Donaldson

Hon. S. Robinson

S. Sullivan

Report and Third Reading of Bills

Bill 24 — Miscellaneous Statutes Amendment Act (No. 2), 2018

Committee of the Whole House

Bill 22 — Civil Resolution Tribunal Amendment Act, 2018

M. Lee

Hon. D. Eby

Second Reading of Bills

Bill 20 — Insurance (Vehicle) Amendment Act, 2018

Hon. D. Eby

J. Yap

A. Weaver

R. Coleman

L. Throness

R. Sultan

S. Gibson

J. Martin

Proceedings in the Douglas Fir Room

Committee of Supply

Estimates: Ministry of Social Development and Poverty Reduction (continued)

M. Hunt

Hon. S. Simpson

Estimates: Ministry of Citizens’ Services

Hon. J. Sims

S. Thomson

M. de Jong

15:04:14, M. Lee, “zthis is what” changed to “This is what”; 15:56:01, A. Weaver,

“withdrawal money” changed to “withdraw money”; 16:49:28, L. Throness, “for” removed

from “nearly for five years”

THURSDAY, APRIL 26, 2018

The House met at 1:31 p.m.

[Mr. Speaker in the chair.]

Routine Business

Introductions by Members

Hon. C. Trevena: I would like the House to welcome a group of students who are going to

be in the gallery shortly. We have, from my constituency, 30 grade 6

students, joined by five adults, from one of two middle schools that are in

Campbell River. These students are from École Phoenix Middle School. They

are here to see the workings of the Legislature. They’ve been studying

government in middle school. I hope that the House will make them very

welcome and show them how interesting, intricate and important the role of

the Legislature is.

Orders of the Day

Hon. M. Farnworth: In this chamber, I call the committee on Bill 24, Miscellaneous Statutes

Amendment Act (No. 2), 2018, and in Committee A, the estimates of the Ministry

of Citizens’ Services.

I’m just reminded that we have about half an hour left on Social

Development. So that is also called first, followed by Citizens’

Services.

Committee of the Whole House

BILL 24 — MISCELLANEOUS STATUTES

AMENDMENT ACT

(N o . 2), 2018

The House in Committee of the Whole (Section

B) on Bill 24; L. Reid

in the chair.

The committee met at 1:35 p.m.

section 1.

S. Gibson: A few queries on the Advanced Education file.

Part 1,

section 1

eliminates the requirement of the Minister of Finance to sign off on

colleges and institutes for the disposal of land and leaves the decision

solely with the minister. A few queries on this, if I may. What is the

purpose of this section? What inspired this to be brought forward? That

would be my first question, hon. Chair.

Hon. M. Mark: Thank you for the question from the member opposite. This

legislation will remove the statutory requirement for approval of these

acquisitions and dispositions from the Minister of Finance. It will

reduce unnecessary duplication of work, reduce red tape and remove

complications for government’s administrative processes.

If this amendment does not proceed, government’s processes for

approving land transactions for colleges and institutes will continue to

be lengthy and administratively burdensome. So it’s really about moving

forward on the principles of administrative fairness and getting those

decisions to the people that want decisions from my ministry.

M. Lee: Just as a follow-on, is that amendment similar to other government

assets in terms of not requiring Minister of Finance

approval?

Hon. M. Mark: The Ministry of Advanced Education, Skills and Training, under my

authority, is an anomaly. Under the SUCH sector — schools, universities,

colleges and hospitals — education isn’t required to have this secondary

step. It actually just slows down decision-making. But this amendment

will bring things into line with the decision-making authority for

education and hospitals.

A. Weaver: To the minister: would you classify this as reducing red

tape?

Hon. M. Mark: Yes. Thank you for the question.

S. Gibson: I guess the question is: what policy outcomes…? What is the

logical conclusion of changing this, which is a relatively significant

change? Should the Minister of Finance have some purview at some point

over these decisions?

Hon. M. Mark: There are levels of due process in these chambers, and when we

make decisions in government, the Minister of Finance can always ask

questions. But there are lots of steps before decisions are made to

transfer off any assets or make any leases to land, etc. This is really

about moving things along quicker, faster, more efficiently, more

effectively. But it doesn’t mean that the quality of the decision-making

is going to be compromised by making these amendments.

S. Gibson: Will there be any written criteria for disposal of lands? Will

there be something that will be reviewed and disseminated that people

can see that shows criteria, in particular?

Hon. M. Mark: There are already very robust criteria that are required. It’s

identified in the Capital Asset Reference Guide .

[1:40 p.m.]

S. Gibson: Will the criteria change at all, in any way, as a result of this

decision? Secondly, will the minister have any kind of communication

with the Minister of Finance or that ministry in a part of this process?

So a two-part question.

Hon. M. Mark: Just for the member’s information, I already have the authority,

as Minister for Advanced Education, Skills and Training, to only go

through my ministry to dispose of assets for universities. What this

amendment is doing is bringing into line the same process for colleges

and institutes. So there will be no change in the

requirement.

What we’re doing is making it more efficient for my ministry to

make decisions. We are always in contact with the Minister of Finance

when we’re going forward in making decisions, but we don’t need the

Minister of Finance’s authority to make those decisions.

S. Gibson: A final question. Given the different governance models of

institutes, colleges and universities, is the criteria or the discretion

of the minister applied in any kind of a different way?

Hon. M. Mark: The answer is no.

S. Gibson: Thank you, hon. Chair, and thank you for allowing me to ask these

questions today.

Section 1 approved.

section 2.

M. Lee: Just on this proposed amendment to the Infants Act…. As I

mentioned in my second reading comments, I’d just like to ask the

Attorney General as to…. When wards covered by this provision reach the

age of 19 years old, what is the process under which they might enter

into agreements with the Public Guardian and Trustee? Must they sign or

accede in any way to entering into that agreement? Is that a mandatory

requirement?

Hon. D. Eby: Thank you to the member for the question.

These sections of this miscellaneous statutes bill that we’re in

committee stage on relate to creating a permission for the Public

Guardian and Trustee to enter into an agreement with a youth, where they

have custody of the youth’s assets, after they turn 19 — a voluntary

agreement that the Public Guardian and Trustee continues to manage those

assets.

It might sound strange to some members, the idea that youth in

care would have significant assets, but in fact, there are a significant

number of youth who potentially have assets from a number of different

sources, whether they be estate assets or, also, the proceeds of

litigation. They have been injured by somebody. That person has been

sued and has paid out a litigation award to the youth. These amounts of

money can be very significant, can be in the millions of

dollars.

When a youth turns 19, currently the Public Guardian and Trustee

has to end that financial management relationship. What this does is

this says: “If you want, 19-year-old, you can enter into an agreement

with the Public Guardian and Trustee now, and the Public Guardian and

Trustee will manage your funds for you.” You can also go off, and you

can — this is totally voluntary — hire a private investment management

firm, or you could go to a bank. It’s up to you. You’re of age now. But

if you wish, the Public Guardian and Trustee is available to assist you

with managing your funds.

In terms of the mechanics, there’d be a specific form, an

agreement that the young adults would have to sign with the Public

Guardian and Trustee in order to enter into this agreement. It would be

entirely voluntary, and the young adult could terminate that at any

point. It’s not binding forever. As long as they felt it was

appropriate, they could keep that agreement in place.

Section 2 approved.

section 3.

[1:45 p.m.]

M. Lee: In respect of this provision of the Liquor Control and Licensing

Act, there has been…. I’m just curious about the background of this

change. Can the Attorney General just comment on the incidents in the

past that have triggered this proposal and what the background or the

rationale is for this change?

Hon. D. Eby: This

section of the miscellaneous statutes bill relates to

conditions around when minors may be in an establishment that serves

liquor. Currently those rules need to be set by regulation. Regulation

is obviously a formal process that engages cabinet process and

order-in-council and so on. It’s a bit restrictive in terms of

conditions being able to be imposed by the general manager.

This revision allows the general manager to impose terms and

conditions on a specific licensee to customize the conditions around the

access of minors to the specific situation of the licensee, as opposed

to having a more general rule coming out of cabinet through a

regulation. We think there are great benefits that come from this

relatively minor change, giving some discretion to the general manager

to impose through a term and condition on a licence, as opposed to

having it set out in regulation.

M. Lee: Thank you for that explanation. Is there some range in terms of

in terms of what the general manager can impose? And is there any

concern that there may be inconsistencies in terms of those sorts of

manager?

Hon. D. Eby: Generally speaking, we expect the general manager to exercise a

mistakenly said “access for minors.” I should have said “employment of

minors.” This

section relates to the employment, not access, of minors

to a licensed area.

There are a number of areas where the general manager has

discretion on terms of licences. So this brings terms related to the

employment of minors in a licensed establishment into consistency with

those other areas of discretion that the general manager already has

Sections 3 to 5 inclusive approved.

section 6.

M. Lee: On this particular section, I would like to ask the Attorney

General whether this particular amendment creates any new powers for the

general manager which are not already authorized through other

provisions under the act.

Hon. D. Eby: This clarifies that a licence can be suspended for failure to

report information that’s required by the act or by the regulations or

powers. What it does is it’s intended to communicate to people who are

reading the act and trying to understand what their obligations are that

they could have to report information under any of these specific

sections, under the act, under the regulations or under the terms or

conditions. So there’s no new power here. It’s just a clarification for

people so that they understand what their obligations are.

Sections 6 and 7 approved.

section 8.

[1:50 p.m.]

M. Lee: In terms of this particular

section and the threshold for the

examination to determine that the person has a reasonable belief that

the identification with respect to the conclusion that the person is not

a minor…. I just wanted to go to that due diligence aspect. What is that

threshold for examination to ensure that that’s sufficient to give that

person the reason to believe that that authentication is

sufficient?

Hon. D. Eby: This

section is a response to the fact that the current act says

that no matter what the circumstances are, you commit an offence if you

allow a minor into your liquor store or other age-controlled, licensed

establishment. What we wanted to do was say….

It is possible that someone could present identification that

would reasonably cause someone to believe that they were of age. We

didn’t want to punish a store operator or a bar operator for somebody

producing a convincing forgery. I knew some kids in high school that had

some very convincing identification from older siblings — friends of

mine.

The idea here is that instead of an absolute liability offence, if

someone manages to get their way into the bar with a convincing fake, we

wouldn’t be punishing someone who allowed them in, if they took

reasonable steps.

The member has asked, reasonably: “Well, what’s reasonable?” There

are a couple of cases on this that establish the standard. Haney

Hospitality is one which made a determination around this. There was

also a case in the B.C. Supreme Court called Miller’s Landing v.

British Columbia.

In the Miller’s Landing case, at paragraph 74, the court

specifically talks about the adjudicator’s

interpretation of the term

“authentic” and the reasonableness of that.

The court has said that…. The member knows, as someone who has

practised law, that there’s a lot of reasonableness in the law in terms

of tests. But the court says that the adjudicator’s obligation…. She was

imposing a requirement that the licensee take reasonable steps to

determine that the identification was genuine, in the sense that it had

been validly issued, that it was genuine in the sense that it belonged

to the person that was offering it to the licensee.

The standard of reasonableness was also examined more broadly as a

sort of legal test in paragraph 84 of that decision, so I recommend it

to the member if he’s curious about how the courts have interpreted

reasonableness around examining identification.

Section 8 approved.

section 9.

M. Lee: In this particular section, I just wanted to ask the Attorney

General whether there are any particular implications to be considered

beyond what’s on its face, in terms of expanding the definition of

“authorized vendor.” Are there any unintended consequences in doing

so?

Hon. D. Eby: The answer is no. This simply corrects an error in the drafting of

the original act, adding a

section to the definition of authorized

vendor to include a person to whom a special event permit is issued

under the Liquor Control and Licensing Act. It was an oversight, and it

doesn’t add any additional powers, authorities or responsibilities

beyond what already existed in the act.

Section 9 approved.

section 10.

M. Lee: In terms of the update on the Property Law Act, I appreciate that

that is what this is. In terms of the use of the terms “building,

structure, improvement or work,” what standard would be applied to

determine whether something falls within those categories?

[1:55 p.m.]

Hon. D. Eby: This

section deals with the unusual situation where someone might

own land that they don’t have access to without having to go across

somebody else’s land, and they can’t get permission of the person that

owns the land to allow them to go through to do repair work — in this

particular part of the amendment, sub 34(1), where they might have a

“building, structure, improvement or work.”

The old

section of the act said you had to have a “dwelling house”

on the parcel of land in order to get an order from the court that

allowed you to cross someone else’s property to get there.

This is a more expansive definition — building, structure,

improvement or work. It’s intended as such, that people should be able

to access their land, and they should be able get through if they have

something that they’re working on — their building, structure or

improvement. It’s meant to be a broad definition.

In terms of the member’s question, it’s meant to be written more

broadly than the current section, which is dwelling house. The courts

will interpret it, but it’s meant to be interpreted broadly.

M. Lee: I’d like to ask whether this has been a particular issue that has

been seen, up to now, in terms of how this particular provision has been

interpreted for property owners. Has it been a challenge?

Hon. D. Eby: Apparently, this came to the attention of the ministry because

someone owned a commercial building on a property that was enclosed by

land owned by others. They couldn’t reasonably get permission from the

owners to access that commercial building because the definition said:

“the owner of a dwelling house on one parcel of land.” That’s why it’s

been expanded to now say: “The owner of a building, structure,

improvement or work.” It was the advice of legal counsel that that was

really the intent of the provision. It makes sense, certainly, to have a

provision to allow someone to access their land when

necessary.

I can advise the member that to our knowledge, it’s a very rare

thing. But it may be that we don’t hear about it a lot because people

use this

section when someone refuses them permission to cross over

their land to get to their dwelling house, to use the old term. They

would provide them with this

section of law and say: “If you don’t

provide me with access, then I’ll go to court and get an order.” Then

they allow access, and the government would never know.

It’s rare to have somebody, though, go to court because they can’t

find the owner of the property or they can’t get permission. We don’t

see a lot of that.

Sections 10 to 13 inclusive approved.

section 14.

S. Bond: I understand that this

section relates to the elimination of a

particular board. I understand it’s because of redundancy, but could the

minister confirm that?

[2:00 p.m.]

While she does that, could she also let me know whether or not the

board has been used throughout the course of its existence?

Hon. C. James: Thank you to the member, because I think it’s important to just

set some context for these pieces. The challenge of a misc bill, a

miscellaneous bill, is that you don’t get a chance to do second reading

and give the overview.

The

section of these amendments to the Business Corporations Act,

as the member has said, eliminates the Auditor Certification Board. It’s

been inactive for more than ten years and is no longer needed because in

2015, the accounting professionals came together in one single

designation. When they came together in that single designation, the

need for a separate certification process — so a separate board to do

that process — was no longer needed.

That used to be done through the Auditor Certification Board. Now,

because they all are required to meet the requirements of one

association, the Chartered Professional Accountants of British Columbia,

the board is no longer needed. As I said, it’s been inactive for more

than ten years, and it’s time to clean it up.

S. Bond: Thank you to the minister for her response. I think all of us

agree that getting rid of redundant legislation is an important part of

the process, so I appreciate that.

If the minister could just confirm for me — and then we can zip

through a number of other sections — that subsequent sections 15, 16 and

17 are actually housekeeping and that they are consequential to the

change in sections 13 and 14.

Hon. C. James: That’s correct.

Sections 14 to 17 inclusive approved.

section 18.

S. Bond: I do have a series of questions, because I know that a number of

things are being amended here.

I want to recognize the staff, and I appreciate the briefing that

they provided. I thank the minister for that opportunity.

Section 18 talks about voting threshold for a special resolution.

Could the minister just walk through what the purpose and intent of the

section is and whether or not it will actually have a direct impact? Is

it practice that we’re now bringing into legislation? Are societies

familiar with this process, or will it be a significant change for

them?

Hon. C. James: Thank you again to the member. Perhaps I’ll do the same thing I

did with the Business Corporations Act — just give a little bit of an

overview of the reasons these changes are coming forward.

I think the member has asked an important question about whether

this will be a change for societies or whether they’re already operating

under these rules.

As the member will know, there were changes made to the Societies

Act in 2016. The previous government passed what was called the

Societies Transitional Interim Regulation, otherwise known as STIR,

before the Societies Act changes passed, to give broad authority for

transitional provisions for any unforeseen legal issues that arose. This

was a regulation put in place so that if there were implementation

challenges in the Societies Act, there was an opportunity through

regulation, these interim regulations, to be able to address

them.

These changes in the next few sections that we’re talking about

take three of those provisions from the regulations and actually add

them to the body of the act. These are temporary provisions that

societies have already been acting under. It will be continued practice.

But instead of them being in regulation, it will move them into the body

of the act, and they become part of the act.

Right now, they’re due to automatically repeal in 2019. That was

how long the regulation was put in place. Again, this is making sure we

take care of putting those into the body of the act before that

regulation expires.

S. Bond: Thank you to the minister. In essence, it is making permanent what

the transitional measures were put in place to do.

Hon. C. James: That’s correct.

Section 18 approved.

section 19.

[2:05 p.m.]

S. Bond: This was an interesting little piece of an interesting amendment.

The sections are related to how votes are recorded. I think that’s a

fair way to describe it. In fact, this now requires that minutes would

cover both the yes and the motions that would have been

defeated.

Maybe the minister could, first of all, confirm that that’s an

accurate description. Then, secondly, were there issues that generated

the need to include this?

Hon. C. James: I think both the member and I have sat on enough boards and

agencies to know these experiences and to know that there’s probably

something that has occurred that has brought forward this kind of

resolution and piece.

Just to be clear, these amendments require the text of the

resolution. They don’t require the vote, whether the numbers…. It’s just

the text of the resolution so that it’s clear there was a resolution

that was brought forward. The text of the resolution is

included.

Yes, this was feedback. When we were looking at the Societies Act,

this was feedback that came forward. People felt that it should be

recorded that there was a resolution that came forward. Previously,

people would say: “Oh, it didn’t pass. Therefore, it’s not required to

be included in the text of the minutes that a resolution came forward.”

But this will require that that text be there.

S. Bond: Thank you very much for that clarification. I’m just curious. Was

it the public that expressed a concern about transparency — so if a

motion was there and not recorded — or was it actually members of

societies who, perhaps, had been participants in a process and then did

not see a motion that they were concerned about reflected in

minutes?

Hon. C. James: This really came from the societies. The societies wanted to make

sure that they had the resolution. I think there were probably

challenges that could come on both sides — the people who voted for and

the people who voted against — to say that they wanted the resolution

recorded, that it was there. So it came from feedback from

societies.

Section 19 approved.

section 20.

S. Bond: Again, one of the things that…. I actually appreciate the

amendments that the minister has brought forward. We have that

discussion often in this House — that there are some practical things

that actually help these societies and other organizations be more

efficient.

This section, as I understand it — again, I had a good discussion

with the minister’s staff about this — is about access to documents. I

certainly know — I have seen situations where there are concerns about

societies — that there is not necessarily the transparency and access

that some would like to see.

Could the minister just walk through the changes and what the

purpose of the

section is so we can, for the record, look at why the

change was necessary, recognizing fully that transparency’s a good

thing? We understand that previous to these amendments, this may have

generated an order, which is apparently a very significant action, so

perhaps just some context about what exactly is being accomplished. I

assume it’s to have an escalating process, rather than simply moving

straight to an order.

[2:10 p.m.]

Hon. C. James: I think “escalation” is a good way to describe it. Currently, if

an order is given, that remains on the record for societies. This gives

an opportunity for that escalation to occur, for the registrar, for

example, to approach the society to ask them…. They don’t have the power

or the authority to order that the document be given, but they can

order: “The document has been requested. If you’re not giving it, why

aren’t you giving it?”

This gives a chance for that conversation to occur first and that

step to occur before a formal order is put in place that then goes on

the record for the society.

Section 20 approved.

section 21.

S. Bond: I see

section 21 as housekeeping, if we’re looking at what the

substantive pieces are. Would the minister concur that it’s a

housekeeping item?

Hon. C. James: I would. This again reflects the fact that you don’t need the

authority, because of the changes that happened earlier in the

bill.

Section 21 approved.

section 22.

S. Bond: This

section is related to…. It’s about restoring a society if

it’s been dissolved for administrative purposes. Previous to this, there

was a 21-day waiting period. Could the minister describe, perhaps, an

example of why removing that waiting period would be

important?

Hon. C. James: Thanks to the member. This provides an opportunity for very

simple, straightforward pieces that may not have been taken care

of.

I think the best example, probably, is filing the annual report.

Societies are required to file an annual report. I certainly know I’ve

had personal experience where a society has come to me, where a new

board was elected. They didn’t realize that the annual report hadn’t

been filed. It wasn’t filed in time, and the entire society was

dissolved. Then they go through the full process that they need to, to

get back as a society, and then they have the delay, the 21

days.

This just provides more fairness for those simple, straightforward

reasons that a society may have been dissolved — not out of intent but

just for the follow-up that has not occurred. It gives them a fairer

process.

Sections 22 and 23 approved.

section 24.

S. Bond: Perhaps the minister can just confirm: is

section 4 transitional

or consequential? It’s a bit confusing in terms of the relationship to a

special resolution. If the minister could just clarify that, I’d

appreciate it.

[2:15 p.m.]

Hon. C. James: Yes, this is transitional. This is transitioning to the new

Societies Act, and it really creates a two-step transition. It’s

intended to ensure that membership has an opportunity to be able to

thoroughly review what often can be very serious provisions in a society

act. So it ensures that unalterable provisions have to go into a bylaw.

When they’ve gone into a bylaw, then the society can go through their

voting process that they would normally do and vote, based on their

existing bylaws, on a resolution.

This is really kind of a check and balance, but it is one of those

issues that was in regulation, that is in STIR and that will now go into

the body of the act.

Sections 24 to 30 inclusive approved.

section 31.

D. Barnett: I notice these are very minor changes, Minister, but I do have a

couple of questions. First, what is the reason for these

changes?

Hon. D. Donaldson: I’ll run over a high-level overview of the changes that are being

contemplated here under the Riparian Areas Protection Act. Riparian

areas of the province are areas near streams and rivers. Since 2006,

regulations have been in place to protect fish habitat and ensure

environmental stewardship, under increasing threats from urban

development.

The proposed amendment will enhance that protection by giving the

minister the authority to publish criteria and methods through a manual

for qualified environmental professionals, like registered biologists,

to follow when they are carrying out habitat assessments in riparian

areas. The change also means that government can reject an assessment

report if it’s incomplete or does not comply with the methods or

criteria set in the regulations of the manual.

Importantly, this change responds to one of the recommendations

from the 2014 B.C. Ombudsperson’s report called Striking a Balance:

The Challenges of Using a Professional Reliance Model in

Environmental Protection — British Columbia’s Riparian Areas

Regulation .

D. Barnett: To the minister: will the setbacks for the riparian regulations

change with this? Has there been any consultation with local

governments?

Hon. D. Donaldson: No, the setback criteria will not change, and yes, there has been

consultation with local government.

Sections 31 and 32 approved.

section 33.

A. Weaver: Just a very quick question to ask, if the minister….

The Chair: If you’ll just wait one moment, the minister will bring her

staff.

A. Weaver: I will, yes.

[2:20 p.m.]

Just a quick question to the minister on this. What is the

rationale for moving away from giving approval from the minister to the

inspector of municipalities instead?

Hon. S. Robinson: I appreciate the question. This just shifts over to what currently

exists for other service bylaws, which is the inspector of

municipalities having the responsibility. This is an old piece of

legislation that’s just being brought up to current standards, in terms

of what the changes have been, so that it fits in with all the other

service bylaws that we have, where the inspector of municipalities

provides approval.

The Chair: Vancouver–False Creek.

S. Sullivan: That was my question.

Sections 33 to 36 inclusive approved.

section 37.

M. Lee: Looking at

section 37: “The minister may make regulations

respecting the procedure to be used for hearings under subsection (3).”

What was the reason for this change? And how often does the minister

expect to be using this power?

Hon. S. Robinson: This provision and the resulting link to the regulation were

inadvertently removed from the act back in 2008. So it severed the link

between the act and the regulation. That’s why we’re fixing an old

error.

Sections 37 to 42 inclusive approved.

section 43.

S. Sullivan: Can the minister explain the removal of the references to the

Board of Police Commissioners in sections 43 and 44?

Hon. S. Robinson: This removes the obsolete reference to the board. It has been

flagged for removal for administrative reasons, including confusion.

It’s an outdated reference, so it’s misleading. This is just about

tidying it up so that it’s consistent.

Sections 43 and 44 approved.

section 45.

S. Sullivan: Yes, 206C: “The Council may, subject to the approval of the

Lieutenant-Governor in Council, by by-law, provide for a pension for any

member of Council.” Removing this power seems…. Well, can the minister

explain the necessity of this?

Hon. S. Robinson: It’s the ten-year vesting requirement that has been changed.

That’s the only thing that’s been removed. This requirement in the

Vancouver Charter is currently in contravention of the provisions of the

Pension Benefits Standards Act. So again, this is just about tidying it

up so that they read properly.

S. Sullivan: So it used to be ten years?

[2:25 p.m.]

Hon. S. Robinson: Immediate vesting was brought in, in 2015, so it no longer makes

sense. It no longer works. They actually contradict each other. The

immediate vesting was brought in, in 2015, at which time plan rules were

changed to immediate vesting for all plan participants.

S. Sullivan: One additional question. How many other requests from the city of

Vancouver to the Vancouver Charter are pending?

Hon. S. Robinson: That’s not part of the legislation, so I really can’t speak to

that at this point.

Sections 45 to 55 inclusive approved.

Schedule 1 approved.

Schedule 2 approved.

Title approved.

Hon. D. Eby: I move that the committee rise and report the bill complete

without amendment.

Motion approved.

The committee rose at 2:26 p.m.

The House resumed; Mr. Speaker in the chair.

Report and

Third Reading of Bills

BILL 24 — MISCELLANEOUS STATUTES

AMENDMENT ACT

(N o . 2), 2018

Bill 24, Miscellaneous Statutes Amendment Act (No. 2), 2018, reported

complete without amendment, read a third time and passed.

Hon. D. Eby: The second miscellaneous bill is always the best.

I call Bill 22, the Civil Resolution Tribunal Amendment Act,

committee stage.

Committee of the Whole House

BILL 22 — CIVIL RESOLUTION

TRIBUNAL AMENDMENT ACT, 2018

The House in Committee of the Whole (Section

B) on Bill 22; R.

Chouhan in the chair.

The committee met at 2:30 p.m.

Hon. D. Eby: I look forward to questions from members.

Section 1 approved.

The Chair: Shall

section 2 pass?

Some Hon. Members: Aye.

The Chair: So ordered.

M. Lee: Sorry, just on

section 2, if I can.

The Chair: We’re going back to

section 2.

section 2.

M. Lee: On sub (e)(4) where it states, under this bill, that the tribunal

is considered to have this specialized expertise in respect of a claim,

what are the implications of that in terms of the nature of the current

composition of the tribunal — when the bill says it has specialized

expertise?

Hon. D. Eby: This raises two issues. One is: who is going to be on the

tribunal? What will their expertise be? And the second is: why do we

need to deem it in the act that the tribunal is considered to have

specialized expertise?

The people who will be hired for the tribunal will have expertise

in motor vehicle matters and in co-ops, in order to hear those specific

matters that are contemplated in this act. But it’s not always enough to

simply hire people with the expertise. Because the Judicial Review

Procedure Act uses, in determining standard of review and determining

judicial reviews of tribunals like this, one of the factors they look at

is: does the tribunal have specialized expertise?

We wanted to send an unambiguous signal to the courts in making

judicial review determinations that in the view of the Legislature,

under this act and the structure we’ve set up, this tribunal does have

specialized expertise — I don’t want to end with a preposition — upon

which areas it is asked to adjudicate.

M. Lee: Thank you, Attorney General, for that response.

Just to further that, in terms of the standard of specialized

expertise, could the Attorney General just describe the kind of

expertise that members of this tribunal will be staffed with?

Hon. D. Eby: For the civil resolution tribunal, the chair of the tribunal

engages in a merit-based hiring process based on the areas of

jurisdiction that the tribunal takes on.

Currently, the tribunal deals with small claims matters under

$5,000, and it also deals with matters related to strata disputes.

Because it’s a dispute resolution tribunal, people with experience in

dispute resolution matters are looked for in the hiring process. People

with expertise in strata matters, strata law, are looked for in the

hiring process. People with expertise in litigation around civil claims

are looked for in the hiring process.

It’s not set out in the bill, but it’s reasonable to anticipate

that the exact same process will happen for these hirings. The chair

sets out a set of criteria for merit-based hiring, interviews candidates

and determines which of those candidates have the necessary expertise in

order to adjudicate these claims.

[2:35 p.m.]

In this case, we would expect that, again, the chair would be

looking for people with dispute resolution capacity, with experience in

laws related to motor vehicle accidents in British Columbia and

experience in relation to law related to co-ops, housing service

providers, and so on.

Sections 2 to 6 inclusive approved.

section 7.

M. Lee: Just in terms of the addition of this provision (1.1) to provide

for an amended initiating notice, given the nature of the initiating

notice, can the Attorney General describe for this House what the

circumstances would be where an amendment would be filed?

Hon. D. Eby: I noticed that we were just joined in the gallery by a large group

of students. I’m not sure whether or not it’s Campbell River Phoenix

Middle School. In any event, it might be useful for the students to know

that we’re in committee stage on a bill around the civil resolution

tribunal that resolves disputes for people in British Columbia. It’s a

tribunal, and it’s about giving this tribunal additional powers to hear

different disputes.

We’re going to go

section by

section through the bill. The member

from the opposition will be asking me questions about the sections. I’ll

do my best to answer. Then the members have the chance to vote on

whether or not they allow the

section to pass. It’s one of the final

stages before third reading of the bill.

With respect to the member’s question on this section, this is an

amendment that comes from a request from the civil resolution tribunal

itself. The tribunal identified that there was a gap in its ability to

amend its initiating notice, and that caused it frustration in trying to

resolve things. From time to time, things might change in a dispute, and

it might need to amend its initiating notice, but it didn’t have a

statutory authority to do that. That’s what this is aimed at. It was a

request from the tribunal to facilitate its processes.

Sections 7 and 8 approved.

section 9.

M. Lee: This provision under the current act…. Perhaps I could just start

with this provision by just understanding, under the current act, the

reason for which government may not be a party to a tribunal proceeding.

If the Attorney General could just explain the background of the current

provision. Then we can go on to the proposed amendment.

Hon. D. Eby: When the tribunal was initially set up by the previous government,

the decision was made not to have government as a party. There were a

lot of questions about the tribunal when it was being set up. How would

it operate? Would it operate well? Would it be sufficiently independent

of government to preserve confidence in the public around disputes

resolved in front of it? The decision was made to leave government out

as a party so that disputes would continue to be resolved, where

government is a party, exclusively in front of the courts.

It also brought into it concerns around the Crown Proceeding Act,

which would also have to be amended in order to allow government to

appear in front of the tribunal. That is why, I understand — although I

wasn’t there — the original decision was made, without commenting on the

rightness or wrongness of those justifications.

M. Lee: Thank you for that. I appreciate your understanding of that. I

wasn’t there either, but thank you for that. It sounds, on its surface,

to be a good

summary.

In terms of the proposed amendment, then, under

section 9 of the

bill to

section 9 of the act, perhaps, first, the Attorney General could

just describe…. When we say “government” in this case, what particular…?

How will government represent itself in a proceeding on, say, sub

9(1)(b), an accident claim?

[2:40 p.m.]

Hon. D. Eby: There are a number of ways in which government could end up in

front of this tribunal. The specific goal here, obviously, isn’t related

to co-ops, which is another

section of the act that gives this tribunal

different powers. This is related to motor vehicle accidents.

The government could actually own the vehicle that’s involved in

the collision, which could bring the government in front of the

tribunal. In addition, a party could allege, in front of the tribunal,

that the road was built poorly or that there were insufficient

safeguards on the road. There should have been a guardrail. There should

have been a stop sign. There should have been a roundabout instead of an

intersection. Whatever the allegation is.

The concern was that if we didn’t have this, all an individual

would need to do to get out of the tribunal and back into the Supreme

Court system would be to allege, “Oh, well, there was a problem with the

road,” and have that determined in…. That would take it outside of the

authority of the tribunal, and you’d be right off to the Supreme Court

again.

The goal of this — which is to get minor injury disputes and minor

motor vehicle matters resolved quickly, efficiently and proportionally

through the civil resolution tribunal — would be frustrated. People

would be able to get up to the B.C. Supreme Court and then a multi-year

process with all of the attendant expenses and processes. So that’s why,

specifically, the member finds this

section and this amendment in

here.

M. Lee: In terms of the actual workings of the tribunal, then, when an

adjuster from ICBC might be called into the tribunal process, this

section is not intended to cover that situation. Is that

correct?

Hon. D. Eby: I’m advised that ICBC has always been able to appear in front of

tribunals. They’re not defined as “government” for the restriction

around it being able to appear in front of tribunals. Government, for

that purpose, is considered to be core government, Her Majesty the Queen

in Right of British Columbia, not Crown corporations and so

on.

M. Lee: Just in terms of the Crown Proceeding Act, will there be necessary

amendments to that act, necessary to include now that the government can

appear before or be a party to a tribunal proceeding?

Hon. D. Eby: It’s

section 38 of this bill. It’s a consequential amendment to

the Crown Proceeding Act. If the member wants, we can approve all of the

sections and get right to it.

Section 9 approved.

section 10.

M. Lee: In terms of this particular provision, in terms of the nature of

it, what sorts of claims do we expect might arise which will necessitate

the application of this provision?

Hon. D. Eby: The only

section that is amended here is subsection (e), which

says: “the tribunal is satisfied that it has been established, on the

basis of satisfactory evidence, that the claim or the dispute is beyond

the jurisdiction of the tribunal.”

This is a

section that allows the tribunal to say, “Hold on; we

don’t want to hear this,” or: “We don’t have authority to hear this;

this should go to B.C. Supreme Court to be resolved.” The

section here

is added because we’ve put a financial limit on the authority of the

tribunal to hear matters that come before it, and that limit is

$50,000.

[2:45 p.m.]

So if it’s less than $50,000, the tribunal can hear it. But if

it’s more than $50,000, the tribunal should be, if it can be

demonstrated as subsection (

e) says…. If the person or their lawyer or

the claimant can show up and say, “This claim is worth more than

$50,000. You don’t have authority to hear this,” and they can present

satisfactory evidence that, yes, it is worth more than $50,000, then it

gets bumped up to B.C. Supreme Court. The tribunal can refuse to hear it

because it’s outside the authority of the tribunal.

M. Lee: Just as a follow-on to that response, when does this determination

need to be made, under sub (e)?

Hon. D. Eby: This could be made at any time, this decision by the tribunal, up

to the point of adjudication by the tribunal — in other words, up to the

point of them making a decision on the matter.

Sections 10 and 11 approved.

section 12.

M. Lee: In terms of the elimination period. I understand, from the

briefing that your office kindly arranged, that the previous provisions

were a bit stop and start. I wondered, though, if, first of all, the

Attorney General could just walk us through the changes that are being

made here, in terms of how limitation periods would apply, just for the

record. Then I’ll go on to ask a few more questions about

that.

Hon. D. Eby: There are two changes here. The first is: if you file in one place

in the tribunal and you shouldn’t have filed in the tribunal and should

have gone somewhere else, it was felt it was desirable to have a fixed

amount of time that people understood — 28 days — to get refiled in the

proper place.

The old provision said that the limitation period stopped when you

filed at the initial place, but then it restarted once you determined

that you were in the wrong place. Then you had the remainder of the

limitation period to file in the new place. That was kind of

unpredictable for people. They didn’t really understand how much time

they had. People could miss out. So it was thought that a clear period

of 28 days, after you find out you’re in the wrong place, is enough time

for people to get themselves together and show up in the right

court.

The other change is a scenario where somebody might show up at the

civil resolution tribunal and say: “Hello, civil resolution tribunal. I

have a claim that I would like to be resolved, and I’m on the last day

of my limitation period.” They say: “No problem.” They fail, though, to

issue an initiating document for 24 hours. There’s some sort of a

technical problem, or there’s an issue of some kind — some

responsibility of the civil resolution tribunal. They don’t actually

issue the necessary initiating document.

[2:50 p.m.]

Because of that possibility of a gap in the limitation period, and

the claim only being considered as being filed with the initiating

document, we wanted to say: “If you show up at the civil resolution

tribunal….” I say “show up” metaphorically, because some people might do

this all on line. If you show up there and you say, “Okay, I have this

claim,” and you request resolution of your claim, that is the date that

should be considered for the limitation period, not when the civil

resolution tribunal issues the initiating document. That is exclusively

within the control of the claimant, and everything after that is

not.

We want to say that because of the limitation period policy, this

is the responsibility of the claimant, so it should be in the control of

the claimant when the claim is considered to be received. I hope that is

clear. If not, I can try to explain it, take another run at

it.

M. Lee: I appreciate that response as well. Just in terms of the 28-day

period, the Attorney General just characterized that or described that

as being the wrong forum perhaps. But is it also not applicable where

perhaps there’s a determination that this is a matter that should go to

the next level in terms of a court? Is that the case in terms of

continuing the claim in a different court level?

Hon. D. Eby: The member is correct, yes.

M. Lee: In circumstances where that’s determined…. It may be because it’s

beyond the jurisdiction of the tribunal, or some other provision is

triggered within this bill. Has the period of 28 days, that period of

time, been reviewed from a point of view that that would be a sufficient

period of time to enable a claimant to regroup and move to the next

level?

Hon. D. Eby: The 28 days was chosen for a couple of reasons. First, our

statutory drafters prefer multiples of weeks because people using the

laws find it easier to calculate timelines when it’s four weeks versus

30 days. It can be more confusing to have an uneven number of weeks.

That’s sort of a statutory

interpretation and statutory use kind of

policy that the government has. That is not unique to our government,

but it started a while ago.

The second is that, currently, appeals have 30-day time periods.

So it’s not unusual in terms of asking somebody to regroup, as the

member says, and get themselves into the proper venue. The third policy

piece is that the person has had two years to get themselves to the

civil resolution tribunal in the first place. We do really want disputes

to be resolved quickly. We want them to be resolved, ideally, within 60

to 90 days. This is also trying to feed into that goal of getting

disputes resolved as quickly as possible.

M. Lee: Are there any circumstances under which that period might be

extended for reasons of the claimant’s situation — financial, emotional

or otherwise? I’m just wondering if there’s any consideration of any

exceptions to that 28-day period.

Hon. D. Eby: These types of limitation periods in this bill are no exception.

They’re typically prefaced by “unless the court otherwise orders.” It

makes it possible for the person to appear in front of the court with

their evidence about why they took longer than the limitation period and

for the court to make a determination about whether that was reasonable

or not.

Sections 12 to 14 inclusive approved.

section 15.

M. Lee: Under

section 15 of the bill, there are certain criteria to

determine, for the tribunal to consider, where there’s a substantial

likelihood that damages will exceed the tribunal limit amount. If the

Attorney General could please take us through what that criteria might

be to determine that.

[2:55 p.m.]

Hon. D. Eby: The criteria are justice and fairness. The court is asked to

evaluate whether it is just and fair in all of the circumstances to

continue with the course of action that’s recommended in the

statute.

It was difficult for us to imagine the different scenarios that a

court might face, in terms of a scenario where it might be unjust or

unfair to refer somebody back to the tribunal or not to resolve it at

the trial level. There’s an infinite number of possible scenarios that a

court might face in this situation. We thought it better to, instead of

trying to prescribe the situation — ill health, a particular need for

urgency…. It’s hard to articulate these kinds of principles.

What we say is: “We have confidence that the court can make a

determination in the judicial exercise of discretion that it is just and

fair in this particular circumstance for us to proceed.”

Now, with that said, the intent of this

section is to say to the

court: “Listen. We’ve set up this tribunal. We set up the tribunal

because we have these values around resolving claims quickly, around

having a proportionate response for minor injuries and for smaller

disputes, not spending a huge amount of time and money on elaborate

court processes that are set up with protections that are far beyond

what’s necessary to resolve a minor injury dispute. For those reasons,

we think you should decline to exercise the authority to hear these

disputes. We think you should send them back to the

tribunal.”

But there might be the odd case where the court goes: “You know

what? In the interest of justice and fairness, we just need to resolve

this now.” It’s hard to say what exactly that would be, but we have

confidence that the courts can exercise that authority and also

recognize the legislative intent here, which is to have a proportionate

response in the interests of ratepayers and in the interests of the

public to have certainty, if they’re involved in a collision, around

what their claim might be.

M. Lee: The test of substantial likelihood is going to be as determined by

the tribunal. That’s the test for the tribunal to work through. Is there

any guidance on that test?

[3:00 p.m.]

Hon. D. Eby: I thought I provided a pretty fantastic answer on the last one,

hon. Chair. The problem with that is that sometimes you can provide a

great answer and it might not be right.

I’ll direct the member to

section 16.3. Actually, 16.3(1) sets out

some of the criteria that a court can consider in determining whether

it’s in the interest of justice and fairness to make a determination.

These include:

“(

a) whether an issue raised by the claim or dispute is of such

importance that the claim or dispute would benefit from being

adjudicated by that court to establish a precedent;

“(

b) whether an issue raised by the claim or dispute relates to a

constitutional question or the Human Rights Code;

“(

c) whether an issue raised by the claim or dispute is sufficiently

complex to benefit from being adjudicated by that court;

“(

d) whether all of the parties to the claim or dispute agree that

the claim or dispute should not be adjudicated by the tribunal;

“(

e) whether the claim or dispute should be heard together with a

claim or dispute currently before that court;

“(

f) whether the use of electronic communication tools in the

adjudication process of the tribunal would be unfair to a party in a way

that cannot be accommodated by the tribunal.”

That’s a better answer because it actually is correct.

I’m going to have to ask the member…. Because we got sucked into a

discussion around justice and fairness, I lost the plot of his most

recent question. So if he could repeat his question now that I’ve

corrected the last answer.

M. Lee: I appreciate that clarification and thank you for that.

I was just referring back to the first part of that, in the line….

Obviously, the term “substantial likelihood” that’s used in the

third-to-last line of sub (2) is really the test that’s being utilized

there. Where “a party has established that there is a substantial

likelihood that damages would exceed the tribunal limit amount,” I’m

just wondering what the test is that a party is trying to get over when

we’re talking about substantial likelihood.

Hon. D. Eby: The member has articulated the test, which is a substantial

likelihood. This is like the test of reasonableness or other

administrative law tests that tie people up in knots sometimes. But in

any event, substantial likelihood is different from likelihood. It’s a

higher standard than a simple likelihood. It’s a signal to say that it

needs to be pretty clear that this amount is in excess of the

jurisdiction of the tribunal.

We want the tribunal to hear the majority of disputes. I don’t

want to import into the statute a bunch of language that isn’t there.

The test is a substantial likelihood, and the tribunal and the courts

will be determining it within that framework that’s set out in the

language of the statute. But the word “substantial” is an important

one.

M. Lee: Thank you for that response as well. Not to belabour the point,

but in terms of when we talk about damages, particularly with respect to

accident claims, that determination of whether there’s a substantial

likelihood that the damages itself will exceed the tribunal limit amount

presumes, I suppose…. This is what I would like to confirm with the

Attorney General. We’re talking when we’re going through this dispute

resolution process, there’s some determination by the court that, other

than in the interest of justice and fairness and those considerations

not being triggered, really the tribunal should consider whether they

have jurisdiction in this matter or they don’t. So that substantial

likelihood is not a time-based question, then. That is really what I

would like confirmation of.

[3:05 p.m.]

Hon. D. Eby: I think the member’s question is an important one. For this

section, the intent is that it’s at the time the court is making the

determination — so at that fixed moment in time when the court has the

evidence in front of them about what the anticipated damages are, and

they’re making that determination: is it a substantial likelihood that

it’s in excess of the jurisdiction of the tribunal? It’s at that time.

So that is a point in time.

The tribunal itself can make a determination at any time in the

process that: “Oh, this has gone beyond our jurisdiction. We’re going to

kick it up to the Supreme Court.” I think that is getting at what the

member was asking. I invite the member to clarify if it

isn’t.

The Chair: Shall

section 15 pass?

Some Hon. Members: Aye.

M. Lee: Sorry. Just tracking through. Just back on

section 15, on sub

16.3(2).

The Chair: Back to

section 15?

M. Lee: Yes, which is an amendment to sub 16.3(2). Sorry, sub 16.3(1)(f) —

the question around electronic communication tools. As I understand it,

much of the CRT’s work can be on line or through electronic

communication. Is that something that, in the case of accident claims,

the Attorney General and the ministry see as a viable form for which

accident claims will continue to be heard, or will electronic

communication not be as effective or as fair to the claimant?

Hon. D. Eby: It’s always open to the civil resolution tribunal to have an

in-person hearing, but for the vast majority of disputes, the medical

evidence is going to speak for itself. The records provided by the

claimant and the respondent — I’m not sure what terms, actually, the CRT

uses, but by the two parties to the matter — will be largely

paper-based. If it’s necessary, maybe to evaluate credibility or

something like that, they can meet in person.

I think that sub 16.3(1)(

f) was really aimed at the possibility

that the person who’s making the claim has some sort of a disability,

perhaps, that makes it difficult for them to use an electronic device,

and it would be unfair to ask them to appear that way. We can probably

think of other scenarios. It’s meant to anticipate that it might be more

just or fair, in a particular situation, to have a person appear through

the court.

Section 15 approved.

section 16.

M. Lee:

Section 16 proposes an addition to the act to provide for lawyer

representation. Just to ask: under the current act and regime, how many

lawyers would typically appear, if any, before the tribunal in any given

year?

Hon. D. Eby: We don’t have that information. I’m sure we could track it down

for the member. Under the existing act, there was an intent, when the

civil resolution tribunal was set up, that people could appear in front

of it without counsel — in fact, that it was less desirable to have

counsel at the tribunal, to the point that the government at the time

passed a provision that said you can’t actually, for many disputes, have

a lawyer, unless you get special permission to appear in front of the

tribunal with a lawyer.

[3:10 p.m.]

This section, for claims under $50,000 for the issue of whether or

not someone has a minor injury, recognizes that these are more

substantial claims than the tribunal has previously heard. Currently

they hear disputes under $5,000 for small claims, and they hear strata

disputes and so on. So the intention of this is to give the person the

ability to appear with a lawyer in this dispute. Let’s say there’s a

dispute around whether or not they have a minor injury or simply to

resolve the claim itself towards the higher end of $50,000.

It’s very possible that some lawyers would find interest in

assisting clients in these kinds of matters. But our intent is the same

as the original intent was in front of the tribunal — that people should

be able to show up on their own, have the dispute resolved with the

active assistance of the tribunal and do it without having to pay legal

fees, so that the majority of the claim amount goes to the claimant.

That’s the intention. We also wanted to say: “If you want to show up

with a lawyer, if you want to pay a lawyer to come, you can do that here

as well, if you wish.”

M. Lee: I understand that it is contemplated that in a tribunal proceeding

in respect of an accident claim, which is what this provision would

speak to, ICBC may also be attending the tribunal hearing with an

adjuster. Is that correct?

Hon. D. Eby: I see that we’re joined by another class in the gallery. I’ll just

refresh, for our committee, that what we’re doing here is reviewing the

Civil Resolution Tribunal Act. This is a tribunal in the province that

hears disputes of a smaller nature, under $5,000, currently strata

disputes. We’re amending it to allow them to hear motor vehicle accident

claim amounts up to $50,000 and co-op disputes as well. We’re going

section by

section through the bill. The member of the opposition is

asking me questions. I’m doing my best to answer them. And at the end of

each section, we vote whether or not it should pass, before third

reading of the bill.

The member’s question was about ICBC’s appearance. The intention

is currently that an ICBC adjuster would attend. ICBC would be the

respondent to the claim. So when someone who has been in an accident

doesn’t agree with what the adjuster has said their claim is worth — if

they say no, it’s not worth $10,000; it’s worth $20,000 — they can go to

the civil resolution tribunal to have that dispute heard. There has to

be someone on the other side saying here’s what we think the claim is

worth. Currently, ICBC’s thinking is…. We don’t have a system like this

right now, but currently, their thinking is that that person would be an

adjuster. ICBC adjusters are not lawyers. They are specialists in

determining the value of claims.

So those people would be attending the hearing, making

representations to the tribunal about what their position is — what the

claim is worth. The person who was in the accident makes representation,

with their medical records and their costs and so on, to the tribunal

about what they think the claim is worth. Then the tribunal would make a

decision.

It is possible that there are complicated legal disputes that

would show up in front of the tribunal — even though it’s hearing

smaller matters — and someone might show up with a lawyer. In that case,

ICBC might show up with a lawyer too. But the intent is to help get

costs down at ICBC and that they wouldn’t be sending lawyers. They don’t

want to be spending money on lawyers. That’s why we’re setting this

system up — to get the administrative cost down around these claims, to

have them resolved more quickly and to have them resolved without a

bunch of legal expenses on both sides so that the money actually goes to

accident victims.

M. Lee: Well, thank you for that response. I would just like to ask

further, in terms of that process, whether a claimant or individual

appearing before the tribunal would get notice of the fact that an

adjuster would be at the tribunal hearing.

[3:15 p.m.]

Secondly, if for some reason…. What would trigger an adjuster to

bring along legal counsel to that hearing? Is it the case where it

appears that the claimant decides to exercise their right under this

section to be represented in the tribunal proceeding? What are the

notice provisions that might relate to this?

Hon. D. Eby: Given the size of the claims that would be appearing in front of

the tribunal, it doesn’t make a lot of financial sense. The size of the

disputed amounts between what ICBC is prepared to pay and what the

person is claiming, that gap…. These are relatively — and it sounds

strange, because it’s maybe $10,000 or $15,000 — small amounts when it

comes to paying a lawyer to show up to argue this file on behalf of

ICBC.

It wouldn’t simply be that someone on the other side shows up with

their lawyer, and therefore ICBC sends a lawyer, because the costs

wouldn’t make sense.

What we’re more concerned about is that in the early days of the

tribunal, there will be a bunch of decisions made by the tribunal. And

then there will be appeals where the case law is set down around: what

are the ground rules for the tribunal, what are the processes, what is

the court’s oversight of the tribunal and so on. These precedents are

really important in ensuring that the tribunal works as

intended.

There may be a case where, although it doesn’t make financial

sense, necessarily, given the amount that is in dispute with ICBC,

someone shows up with a lawyer, and we know that the intent is to try to

set a precedent in the matter. Then ICBC might choose to send a

lawyer.

It wouldn’t strictly be financial. It wouldn’t simply be that the

other party showed up with a lawyer. It would really be: is this a

complex legal argument that has the possibility of setting some kind of

a precedent that ICBC needs to make an appearance with a

lawyer?

In fact, it’s very likely that in the majority of cases where

someone would show up with a lawyer, an ICBC adjustor would show up on

the other side just for the simple financial reason of it not making

financial sense for the corporation to be sending a lawyer to every

single hearing.

M. Lee: Well, thank you for that response as well.

I guess that I appreciate that we’re trying to reduce the

administrative burden here. Just under the current situation and with

ICBC adjustors appearing in a tribunal hearing, obviously there’s a bit

of an unlevel field there.

I appreciate the tribunal plays a role to help facilitate the

dispute itself, but in terms of understanding the nature of a minor

injury and any complexity that might be around the recovery of any

claims in respect of that, particularly if it goes beyond the $5,500

limit up to the $50,000 limit….

What the question and the concern would be around whether this

provision is going to lead to…. At least in the initial period of time,

as the Attorney General just mentioned, I do expect, and I understand,

that a lot of precedents may be set as to how certain types of claims

will be dealt with by this tribunal.

Is there a concern, in terms of fairness for the actual

individuals, that they may not have the ability to retain legal counsel

because of the limits involved? Is there a concern here that the

Attorney General might see in this being an unlevel playing field in the

way that this is being structured?

Hon. D. Eby: The intent is to have this tribunal operate in most cases without

counsel. You’ll see, in this

section that we’re talking about, that

we’re making an exception, saying: “Look, if you really want to bring a

lawyer here, given the amount of money that you’re going to pay in legal

fees and the amount that’s under dispute, which by definition under this

act, is less than $50,000…. If you really want to bring a lawyer, you

can bring a lawyer. But the amount of money that you’re going to spend

on your lawyer is going to eat up a lot of your award, so it’s probably

not to your interest.” We wanted to provide people with the right to do

that.

For ICBC, it’s the exact same thing. The amount of money involved

in these disputes will not justify, in the vast majority of cases,

showing up with a lawyer.

[3:20 p.m.]

The concern that may cause the corporation to send a lawyer to a

hearing, especially in the early days, might be that this case, for some

reason, might set a precedent that could undermine the intention of how

this thing is intended to operate. So they may, in that scenario, be

sending a lawyer.

ICBC spends somewhere between $120 to $300 an hour for the lawyers

that it has on contract. It does not take many hours of getting familiar

with the background on the file, going to the hearing, and then the

hearing is adjourned, and then you’ve got to appear in front of the…. It

doesn’t take long to eat up a lot of money appearing with a lawyer

instead of just sending the adjustor, who is an expert in claims who can

provide the tribunal with the information that they need.

That will be ICBC’s approach. That’s the intention here. It’s not

different for ICBC than it is for a claimant, in that, given the value

of the claims here, it just doesn’t tend to make sense for counsel to

appear.

M. Lee: I appreciate, again, that in the early stages of this tribunal, as

it might move forward if it’s passed in this House, is the movement

towards being based on what might be the adjustor’s understanding of

similar minor injuries or accident claims of a similar

nature.

Presumably, of course, ICBC has that data bank today. That data

bank is utilized by the adjustor to go into a proceeding. Of course,

every claimant, presumably, under a new regime — particularly with the

limits that are being set, potentially, under the Insurance (Vehicle)

Act and in this tribunal proceeding…. Every claimant, I presume, will

feel like: “My situation justifies more recovery than what might be

presented.” You could see that there will be scenarios where a claimant

might want to bring legal counsel in order to test this tribunal’s view

on the recovery. I think that that is the concern.

I’ll just say that where these limits are applying, the question

would be: is it as simple for the tribunal and the adjustors to

determine what the value of a minor injury would be in the case of this

tribunal versus something that might be prejudicial to the claimant

going forward? This a determination that’s being made in the current

context when there’s the initial diagnosis and what’s being presented to

the tribunal.

Would the Attorney General at least see that there’s a possibility

that this might be prejudicial to the claimant as they’re appearing

before the tribunal, in terms of unrepresented or represented, the way

this is structured?

Hon. D. Eby: I’d argue, actually, that this situation could provide a claimant

with a significant benefit that’s not available currently. That is, if

you’re not sure about the nature of the injury that you’ve received

currently — you’re not sure about what your claim is worth — there’s no

option. You cannot do anything, really, in my opinion. You can. I mean,

logistically you can go to B.C. Supreme Court by yourself. You can file

your own claim. You can appear on your own account. It’s really

difficult. It’s really hard to do.

Practically, you have to hire a lawyer to have your claim

independently reviewed and assessed. This process that we’re setting out

allows somebody to go and have their claim independently assessed

without a lawyer. It’s set up in that way, and the tribunal provides a

great deal of assistance currently to people who appear in front of it,

to help them to get through the process without counsel.

You can go, and you might have the tribunal review your claim and

say: “This is in excess of our jurisdiction. You have to go to the B.C.

Supreme Court.” Then you would know: “Okay, now is the time when I need

to go and to hire a lawyer and go ahead.” But you can’t do that

currently; you’re on your own, unless you go and hire counsel to assist

you through the B.C. Supreme Court system.

[3:25 p.m.]

So in some ways, certainly, I would argue that this provides a

benefit to people in determining their claims with an independent

assessor — somebody independent of ICBC; is the adjudicator giving me a

fair deal here? — in a way that currently they can’t do.

M. Lee: Thank you for that response. I guess that this goes back to, then,

in terms of the independent adjudicator, the kind of expertise that the

tribunal will have. We’ve talked earlier that, of course, the core

competence would be dispute resolution, but in terms of assisting both

parties to come to resolution on the right claim amount….

I’d like to come back to the Attorney General in terms of the kind

of expertise that will be employed in terms of medical understanding of

personal injury and the complexity of what is currently in the proposed

definition of minor injury, including psychological, psychiatric,

chronic conditions, as well as pain syndromes. Will the expertise of the

tribunal be there to assist in this? And to what degree do they have the

capabilities of assessing the amounts that would be appropriate for

recovery purposes?

Hon. D. Eby: I’m speculating here, but I think that it’s not unreasonable to

expect that there are going to be a significant number of personal

injury lawyers who are going to be taking these jobs — people who have

knowledge and expertise in assessing claims and that have knowledge

about the law, people with experience in personal injury law. I think

there’s a distinct possibility we’ll see a number of lawyers with

personal injury experience applying for these jobs at the

tribunal.

There are a number of different categories of expertise that we

could anticipate that the tribunal might draw on, but certainly, lawyers

are one obvious group — people with legal training and experience in

personal injury.

Sections 16 and 17 approved.

section 18.

M. Lee: This provision is an amendment in terms of the area around

experts. So I’d ask, first of all, of the Attorney General what the

intent is. It seems, under (e)(ii), that there would be a desire to

limit the number of experts that a party may call. So what, overall, is

the plan here in terms of experts? I know that there’s obviously a

requirement that expert evidence be done jointly. What’s the overall

rationale and plan for this provision?

Hon. D. Eby: ICBC currently, for claims under $50,000, pays about $25 million a

year for expert reports. Obviously, that is a very significant cost.

It’s arguable, in my opinion, whether it provides a great benefit to

people appearing in front of court. To have two experts or three experts

on each side, each saying the opposite of the other expert, doesn’t

particularly help the court in determining the value of the

claim.

So for minor injuries, for claims under $50,000, we want a process

that is proportionate to the injury and the value of the claim. It means

that the tribunal could say, “We don’t need a whole bunch of experts

here. We would like for you, for example, to work together and find an

expert that you can both agree on to do the assessment, and that’s

that,” or: “You know what? We need a little bit more expertise here.

This is a complicated factual matter, so we’re going to allow more

experts here, but we’re going to limit it within this range.”

We want the tribunal to be able to hear expert evidence, but we

want them to maintain control over it, because it’s a significant cost

driver.

[3:30 p.m.]

M. Lee: I appreciate the concern around understanding the context and the

limits and the proportionate nature.

In terms of a single expert, in theory, being able to take on this

retainer, is the thinking that…? Where do we source these single experts

in the sense of whether they’ve traditionally been on the plaintiff side

or whether they’ve been on the ICBC side? Just a concern around how an

expert can jointly advise both sides to this dispute.

Hon. D. Eby: Given the adversarial nature of a litigation process, it has been

the experience of ICBC, and I expect on the claimant’s side as well,

that doctors are reluctant to participate, because they have to sit on

the stand and have their CV taken apart and be accused of interpreting

records improperly and not understanding their profession. People are

reluctant to do it.

[L. Reid in the chair.]

The hope is that this may actually significantly expand the expert

pool if the understanding is that both parties are asking the doctor to

provide their best medical opinion about what the state of the evidence

is. Our hope is that, actually, there will be more doctors available to

do this kind of work and everyone will be less reliant on what are known

as either plaintiff- or defence-side experts — that the pool of doctors

willing to do this kind of work will actually increase.

M. Lee: Well, I suppose that given the adversarial nature of this, it will

be a situation where, with the tribunal adjudicating and a single

expert, there may, at times, be disagreements between the two parties in

terms of the advice they’re receiving from the expert. Is it intended

that this would preclude any second opinion in this regard?

Hon. D. Eby: It’s almost guaranteed when the expert renders his or her opinion

that one of the two parties is not going to see what they had hoped to

see. It’s possible that both parties will be unhappy. There is the

possibility here for the tribunal to allow additional experts,

certainly. It’s within their authority to allow additional experts. But

I would think it would be highly unlikely that the tribunal would allow

additional experts simply because one or the other of the parties — or

perhaps both of the parties — was unhappy with the findings of the

expert about the extent of the injury.

You’ll see, in subsection 32(1)(e), the ability for the tribunal

to either require a joint expert or limit the number of experts a party

may call, which contemplates, of course, that there may be more than one

joint expert, or “by limiting the giving of expert evidence in respect

of one or more issues in a claim to an expert appointed by the

tribunal.” So the tribunal, as an independent tribunal, could also

potentially appoint an expert in order to provide evidence on a

contentious matter.

M. Lee: One other question about experts would be: what criteria would the

tribunal be using in order to select experts?

Hon. D. Eby: The question of which expert to call would really depend on the

area of expertise that’s required. We’ve been talking a lot about

medical experts, but that’s just one category of expert. In matters like

this, you might have someone with an expertise in reconstruction of a

collision, in understanding how fast a vehicle may have been travelling

or any kind of expertise that the tribunal might need. It’s not a closed

category. The tribunal might need expert evidence on any number of

topics.

[3:35 p.m.]

Section 18 approved.

section 19.

M. Lee: In respect of this provision, if I could ask the Attorney General

to comment on what the current applicable time periods are for the

tribunal to render a decision.

Hon. D. Eby: Currently there’s no time period prescribed by the rules. The

section, as it reads currently, implied that there was one. There isn’t

one. So the tribunal wanted the law to reflect the reality.

They are resolving most matters within 60 to 90 days and have a

very good track record of resolving disputes in a timely manner. It may

be that at some point in the future they would see fit to have a time

limit on resolving matters. In that case, there might be a rule, but

currently there isn’t. Putting in the words “if any” just ensures that

the law better reflects the practice.

M. Lee: I understand from my colleagues that, at this point, I should ask

for a recess from this committee stage on Bill 22.

Hon. D. Eby: I move that we rise and report progress.

Motion approved.

The committee rose at 3:36 p.m.

The House resumed; Mr. Speaker in the chair.

Committee of the Whole (Section B), having reported progress, was

granted leave to sit again.

Hon. D. Eby: I call second reading of Bill 20, the Insurance (Vehicle)

Amendment Act.

[L. Reid in the chair.]

Second Reading of Bills

BILL 20 — INSURANCE (VEHICLE)

AMENDMENT ACT,

Hon. D. Eby: I move that Bill 20 now be read a second time.

The amendments in this bill set the foundation to put the

Insurance Corporation of British Columbia on a stable and sustainable

financial footing while keeping insurance rates fair and affordable for

drivers in British Columbia.

It will also ensure a framework is in place for an enhanced

care–based system that makes taking care of people injured in a vehicle

accident ICBC’s top priority, with increased benefits for the treatments

and support they need to get better.

[3:40 p.m.]

The amendments will allow for a retroactive increase in the

maximum limit payable as accident benefits for medical and

rehabilitation costs for accidents occurring on or after January 1,

2018. This will support our February commitment to increase the limit of

accident benefits payable from $150,000 to $300,000 for accidents

occurring on or after that date.

The amendments also provide for an expanded list of health care

providers that ICBC must pay as accident benefits — for example,

including massage therapists, occupational therapists, physical

therapists and chiropractors — and allow government to set the amounts

payable as accident benefits for those services.

These changes would be effective for accidents occurring on or

after April 1, 2019, and will ensure that every person involved in a

vehicle accident is able to access the health services they need to get

better. Specific increases to ICBC’s accident benefits will be defined

in regulation.

The bill will also limit the amount recoverable in an accident

claim to the amount payable as health service accident benefits. To

ensure the amounts payable reflect a fair rate for health care

practitioners, the minister responsible will be required to initiate a

review of the amounts payable for the provision of health care as

accident benefits every five years.

The review must be conducted in consultation with ICBC and any

other persons or organizations the minister considers appropriate, and a

report on the results of the review, including any recommendations

included in the review, must be tabled before the Legislative Assembly.

This will ensure government is held to account on the accident benefits

provided so that we don’t again see this current situation where

accident benefits haven’t increased in 27 years, since 1991, and people

must turn to litigation to recover their health care costs.

The bill will also provide that certain medical and wage-loss

benefits must be deducted from a damage award in a vehicle claim and

that a person who pays or provides a medical or wage benefit cannot

recover from the at-fault driver or their insurer.

To ensure that ICBC funds are directed towards helping people get

better through improved accident benefits and in support of ICBC’s

financial sustainability, this bill includes provisions to limit the

amount a claimant can recover as damages for non-pecuniary pain and

suffering resulting from a minor injury that occurs on or after April 1,

2019. The supporting regulations will prescribe the maximum limit and

allow for considerations such as contributory negligence and instances

where a person sustains both a minor and non-minor injury.

The bill will introduce a new legal definition of what constitutes

a minor injury in B.C., which includes abrasions, contusions,

lacerations, sprains and strains, pain syndrome, psychological or

psychiatric conditions or other prescribed injuries, whether or not

chronic, where the injury doesn’t result in a serious impairment or a

permanent serious disfigurement.

This will be further defined in regulation to ensure that only

minor injuries are captured in the legislation. Serious injuries, like

broken bones, as well as more catastrophic injuries will not be captured

under the definition. If a person’s symptoms persist beyond 12 months

and have a significant impact on their activities of daily living, such

as work or school, the injury would no longer be considered

minor.

The legislation will provide for prescribed medical and diagnostic

treatment protocols for minor injuries. If a person follows these

protocols and their minor injury still worsens to the point of becoming

non-minor, then the limit on pain and suffering damages would no longer

apply. If that person fails to follow the protocols, the limit on pain

and suffering damages may still be applied in some

circumstances.

Be assured that the diagnosis of an injury will be determined by a

medical professional and not ICBC, the same as today. Government is

consulting with the medical and health care community in order to

determine the most appropriate definition of “minor injury,” protocols

and fair rates for treatment.

The bill also includes appropriate regulation-making authority for

future product and rate premium design changes, including announced

enhancement tax and benefits and various housekeeping amendments for

such purposes as clarifying the meaning of terms used in the

legislation, such as the terms “accident” and “certificate,” the

authorization to collect personal information and to improve

readability, as well as amendments consequential to the key changes

discussed earlier.

In

summary, these and other provisions that bring about ICBC

insurance product reform are expected to save the corporation more than

$1 billion annually at full implementation and will also lay the

foundation for a care-based system that focuses and invests primarily in

helping people recover from vehicle accidents.

J. Yap: Everyone in this House understands that there are challenges at

ICBC. There are challenges with auto insurers across North America.

Crashes, injury and vehicle damage claims are all increasing

dramatically. These trends are not unique to British

Columbia.

[3:45 p.m.]

In government, we took a series of actions to keep insurance rates

affordable, including transferring $1.5 billion from optional to basic

and increasing penalties for distracted driving, which now are among the

most severe in Canada. We increased premiums for luxury cars.

Procurement strategies in the Lower Mainland were brought in to improve

the bottom line. We reduced overhead at ICBC, including 500 fewer

managers and a 50 percent reduction in the executive compensation. A new

IT system saves $90 million per year. Measures to combat fraud resulted

in $44 million per year in savings. And a new windshield repair

program.

These measures helped, but as members know, the sudden and

dramatic rise of collisions and injury claims has continued. So I want

to be very clear. We recognize that government had to take additional

action to keep the rates down; government, however, has to strike a

balance. Yes, we have to control costs, but we also have to ensure that

British Columbians have affordable premiums and receive fair

compensation when injured.

With that said, I have concerns with some of the specifics of this

bill. For instance, this bill will actually restrict options for victims

of a traffic accident. Currently if you require physical therapy,

chiropractic care or some other ongoing treatment for an injury suffered

in an accident, it’s taken care of. But this bill says ICBC will

determine market rates. In other words, if your chiropractor charges

more than ICBC deems acceptable, you’re on the hook.

I recognize that the intent is to ensure that treatment providers

don’t charge more when they know insurance is paying, but it assumes

that claimants have easy access to a wide range of good treatment

providers and ignores that treatment rates may vary from community to

community. If the more expensive option is all that’s available or

appropriate, claimants are either out of luck or out of

pocket.

This bill also appears to have holes and vague wording. I had the

opportunity yesterday to speak to Bill 22, which is closely related to

this bill and raises many of the same questions. I understand the intent

is to control rising injury costs, but it’s difficult to understand the

mechanism being put in place here.

What’s attracted the most attention is the cap for minor injuries

that don’t result in serious impairment. It’s not hard to understand

why. I think most British Columbians are wary of caps on compensation. I

appreciate that the cap is not intended to apply to lost wages or

treatment, but concepts like minor injury and serious impairment are not

necessarily clear and are left to regulation.

Crucially, this bill does not address mental injury. Often after a

motor vehicle accident, a victim may experience mental or emotional

trauma and suffer lost wages as a result. I’m concerned that the cap may

lead to significant disparity between claimants who are members of

benefit plans which provide them with long-term disability coverage,

versus those claimants who are not. How fair is it that a claimant who

does not enjoy coverage by a benefit plan, say, available through his or

her employer may be forced to settle for the cap amount of $5,500 while

another claimant with such a benefits plan would receive payments over

an extended period of time?

I am suspicious that this bill is intended to lay the groundwork

towards raising premiums for bad drivers. That sounds good. Who could

disagree with asking bad drivers to pay more so that good drivers can

pay less? But what constitutes a bad driver? Surveys show 99 percent of

all drivers say that they are good drivers. Obviously, someone with a

series of infractions for things such as texting while driving is a bad

driver, but what about a single traffic violation? If a driver with a

spotless record gets pulled over for a rolling stop, is that a bad

driver? If that person suddenly sees their premiums go up, is that

fair?

I would assume that, at a minimum, a bad driver would be defined

as someone who demonstrates a consistent pattern of unsafe behaviour or

breaking the law. That is not clear here. Does a single instance of

merging without signalling make someone a bad driver? What about one

rolling stop at a stop sign or an improper lane change on an empty road

or driving 90 kilometres per hour when the posted limit is 80 kilometres

an hour?

[3:50 p.m.]

I would suggest that the overwhelming majority of British

Columbians, including the members of this House, have been guilty of one

of these infractions at least once. I would also suggest that that does

not necessarily mean that they are bad drivers. If that is the intention

here, let’s have those discussions — the earlier, the better.

Overall, this bill seems to fit a pattern that is emerging. It

turns over a lot of control to cabinet through regulation. Why? There is

obviously a great deal of public interest in public automobile insurance

rates and injury compensation. Why not have the opportunity to debate

future changes here in the Legislature? In fact, when government members

were on this side of the House, they frequently and passionately argued

against government by regulation, by cabinet order. Why has their tune

changed?

Finally, I have questions about the projected savings. The NDP

government claims this bill will result in $1 billion in savings. After

what happened in the Ministry of Finance and the so-called speculation

tax, where revenue estimates remained the same even after the tax

changed, it’s only fair to ask about the financial modelling. And $1

billion is a significant amount of money. This bill does not make it

clear how those savings will be achieved. I believe the government

should show us its math. I look forward to exploring these issues, and

others, in more detail with the minister in committee.

A. Weaver: I rise to take my place in the debates at second reading for Bill

20, the Insurance (Vehicle) Amendment Act. I thank the member for

Richmond-Steveston for his comments and the minister for introducing

this bill.

Bill 20 is one of two bills, hon. Speaker, as you know. We’ve been

debating Bill 22, the Civil Resolution Tribunal Amendment Act.

Collectively, these bills are designed to get a handle on price

increases that are going forward in ICBC. You know, British Columbia is

the last jurisdiction in Canada for which victims can sue for any type

of injury for any amount. This is known as the full tort system. These

measures are attempts to get a handle on costs.

After quite a number of years, in the words of the Attorney

General — in a press scrum, he noted that ICBC finances became a

dumpster fire. I think, actually, that’s a quite appropriate comment in

light of the rather dramatic rate increases and budget overruns that are

seen in ICBC due to financial negligence of its oversight through too

many years of a government that seemed to view it as a bank account from

which to withdraw money rather than as an insurance agency and public

good designed specifically to actually ensure value for British

Columbians and safety for British Columbians on the road.

This bill provides for regulation on a few major aspects of ICBC —

product reform including limiting payouts for pain and suffering and for

minor injuries — and allowing for increased medical benefits to be

established in regulation. These announcements that are put forward in

this bill were actually pre-announced in February.

For me, the important aspect of this bill is that it takes the

onus off the legal system and puts the onus on getting a person healthy

by increasing the availability of resources for them, whether they be

expanded service…. The treatment, the whole focus, now is on the person.

That, to me, is important.

We all know of litigative examples that one could describe as

somewhat dodgy. There seems to have been an increased, growing number of

these, whereby people go to courts and sue for every this, that and the

other. Now, with this being put in place, it’s actually saying: “You

know what? We’re joining the rest of Canada.”

We no longer are going to be considered the Wild West here, in

terms of insurance premiums. We’re going to follow the lead of every

other jurisdiction in Canada and move away from the full tort system to

one that actually recognizes that costs in ICBC are going up. A

substantial amount of those is associated with soft tissue injuries, and

we will actually take steps to limit that.

[3:55 p.m.]

There are a number of key changes in this bill. The most important

one, as I outlined, is the focus on people and on getting better, rather

than litigation. That, to me, is a critical reason why I support

this.

Before I go on to the changes in the bill, I’d like to summarize,

again, some quick facts from ICBC to underscore just how serious the

situation is in ICBC, which is ultimately reflected in the

ever-increasing — despite having no accidents — premiums that we are

paying in this province.

Government had to do something. ICBC claims totalled $2.7 billion

in 2016, which was an 80 percent increase in seven years — seven years

where the B.C. Liberals, historically, just watched and let this get out

of hand.

The average claim paid out for minor injuries rose from $8,200 in

the year 2000 to $30,038 in 2016 — a 265 percent increase in average

claim payout for minor injuries. Again, under the watch of the B.C.

Liberals, who let this get out of hand and viewed ICBC as a bank account

from which to withdraw money as dividends that should not have been

withdrawn, because that money didn’t exist.

Over this time, if I go back to the average pain-and-suffering

award paid out for minor injuries…. In 2000, it was $5,004. In 2016, it

was $16,499. Vehicle damage costs have increased 30 percent in just two

years to a total of $1.5 billion in 2016 alone.

Now, I don’t want correlation to imply causation, but of course,

one has to wonder what the effects of eliminating those ICBC inspection

stations and adjustors from actually assessing claims…. What has been

the net cost to the ICBC ratepayer, again, as a direct cause of measures

that were taken by the previous government a number of years

back?

To the specific aspects of this bill. Some of the key changes are

that provisions are now being introduced through regulation to allow the

claimant to recover damages for pain and suffering from minor injuries.

There’s now a legal definition of minor injury, which is included in

this.

Of course, I have some sympathy for the comments from the member

for Richmond-Steveston and the member for Vancouver-Langara in other

debates that he’s done here — that a lot of this is left to

regulation.

Again, there is some definition. There’s some language with

respect to minor injury and listing abrasions, contusions, lacerations,

sprain and strains, pain syndrome, psychological and psychiatric

conditions, or the old “injury as prescribed” in a prescribed class of

injury, where that means whatever a regulation says, even if it’s

chronic.

I also have some sympathy for the counter-argument raised by the

Attorney General, who has suggested that in jurisdictions that have

introduced legislation with respect to minor injuries, there are some

very sharp lawyers out there who find exemptions to that. So rather than

set it all in stone, the enabling legislation enables, through

order-in-council, the government to fix any loopholes that may arise in

terms of people trying to claim something’s not a minor injury when, in

fact, the intent of this legislation would be that it were to be

included. Again, I have some sympathy there.

One of the things that’s important is the allowance for an

extended list of health care providers to allow ICBC to use for accident

claims, which is actually important. You know, despite what the member

for Richmond-Steveston said, there are a lot of people who aren’t

covered, and it’s not easy to actually get coverage at all times with

ICBC. There are limits.

The focus now is not on recovery. The focus now is on trying to

avoid the courts, and that’s a problem. That’s a problem when ICBC is

more concerned about avoidance of courts and settling and litigation. In

certain cases, they are more concerned about the settlement than

actually getting someone better.

I do have sympathy for the Attorney General in bringing this

forward, this legislation, and support his efforts in this

regard.

There are a number of questions. I mean, there are some mechanisms

that are in this bill that allow ICBC to no longer reimburse other

insurance companies, with the exception, of course, of WorkSafe B.C. and

the MSP, for payments to their customers.

Of course, we know that today’s customers can receive benefits

from other insurance companies, not just and not only ICBC, if they

happen to have secondary coverage through work or others. They can get

that after a crash. They may receive wage-loss benefits, for example, or

extended health care benefits from their employer.

[4:00 p.m.]

We know right now that most insurance companies indeed have

agreements in place where the customer has to pay back these benefits if

ICBC also pays for these expenses. With the changes in the legislation,

ICBC will not pay the other insurance company for the same benefit they

have already provided. That seems to me fair if you’ve got the

additional coverage. We’re saying if you’ve got the coverage, ICBC isn’t

going to pay the insurance company. They’re going to let the insurance

company pay that additional amount. They’ll still, of course, cover you

if you’re not covered.

Of course, there are, too, some overarching issues here. A lot of

it is left to regulation. But overall, the public response, with the

notable exception of trial lawyers, is quite positive. I’ll start with

the negative, of course.

We know that John Rice, from the Trial Lawyers Association of

British Columbia, has suggested that the changes since February are

concerning because they have widened what is considered a minor injury

and, therefore, subject to the cap. He says that “the legislation

represents one of the most significant attacks on the legal rights of

British Columbians in our province’s history. The proposed legislation

goes much further than what was previously announced by Eby in February

in making victims pay for reckless and distracted drivers. Instead, ICBC

and the NDP….”

Deputy Speaker: Member, only referencing by riding name.

A. Weaver: Oh, I do apologize. I was reading a direct quote from the letter.

Thank you for noting that. It was announced by the Attorney General, who

he referred to by name, which of course, is not appropriate for me to do

in this Legislature.

He said: “…by the Attorney General in February in making victims

pay for reckless and distracted drivers. Instead, ICBC and the NDP

government want to cap even more injuries than British Columbians suffer

because of someone else’s negligence.”

Now, my retort to John Rice, of course, would be that now British

Columbia is the only jurisdiction in Canada — the only one left — that

is the Wild West of thou shalt sue whoever thou wants whenever there’s

an accident, to see how much money you can get. I understand that there

are certain trial lawyers who will be upset because they have made a

livelihood out of this so-called issue.

I also have some sympathy with respect to government trying to

deal with this, because costs are getting out of hand. We know that

those costs are coming for settlements on soft tissue, for example. And

there are other costs associated with increased motor vehicle claims.

But again, to members here, it seems to me that we are the last

jurisdiction for allowing this full tort system. It’s not unexpected.

Nor is it really, frankly, outrageous. Nor is it, actually, uncommon for

one to expect that it’s time for us to get with the program. I commend

the Attorney General for actually stepping up and doing this.

There are, of course, many other comments that are on the positive

side. I received many emails in this regard. A couple of key ones, of

course, are…. Giovanna Boniface, from the Canadian Association of

Occupational Therapists, says:

“Unbelievably, accident benefits haven’t been increased since 1991.

B.C.’s occupational therapists have been helping injured drivers return

to activities of daily living for decades and have seen declines in

access to vital and necessary treatment for years. By raising the amount

covered and expanding the variety of treatments that are eligible, these

changes will allow more people to have access to the treatment and

adaptive equipment they need, thereby fostering quicker recovery and

return to meaningful, daily activities. “

This is important because I know, only too well, the problems that

have arisen with people trying to get benefits from ICBC. You’re allowed

to make two claims. In the first claim, they’ll pay your expenses, but

they won’t pay your other medical expenses until the second one, which

is when all is better. The problem there is that ICBC is incentivizing

you to go to a lawyer.

If you have a difficult time paying those expenses…. I know people

very close to me who have had to pay thousands of dollars in expenses.

They’re not going to see lawyers, because they want to actually get

better. But they have to pay it up front. They can pay it up

front.

What about the person that can’t pay it up front, the person who

doesn’t have the hundreds and hundreds of dollars to spend on ongoing

physiotherapy? They make their claim after a couple of months and

realize that they need many months more of physiotherapy and, say,

chiropractor and massage therapy. They have to pay it and hope that,

perhaps, they’ll get reimbursed at the end. Sometimes they can’t. They

go to a lawyer, and the lawyer’s office says: “You know what? Get

yourself better. We’ll cover the expenses. We’ll open a

file.”

[4:05 p.m.]

As soon as the lawyer opens the file, guess what. We know the

settlement is going through the roof.

Here, what is so welcome to me in this bill is that the focus is

on the patient and getting the patient better. That is the number one

focus. For many, having the ability to get better is what they want. So

again, I applaud government for bringing this forward.

Another commentator is, of course, Jane Dyson, from Disability

Alliance B.C. Jane says:

“Disability Alliance B.C. has been advocating for improvements to

accident benefits for 12 years.”

Funny, that — 12 years. That’s less than 16

years.

“The doubling of the overall allowance for medical care and recovery

is a significant improvement. We welcome these long-overdue changes that

will mean that people who are catastrophically injured in motor vehicle

accidents have better supports available to them to help them rebuild

their lives. Moving forward, DABC” — that’s the Disability Alliance B.C.

— “looks forward to continued dialogue with ICBC and government to help

ensure that British Columbians accessing accident benefits receive the

treatment and financial support they need.”

Then, of course, there’s Louise Craig, who’s a Vancouver-based

physiotherapist. She’s also a spokesperson for the group Rights Over

Arbitrary Decisions — ROAD, an interesting acronym — for British

Columbians. She said this: “It’s good that government keeps talking

about increasing medical benefits for those involved in a crash, but the

loose definition of minor injury in Monday’s bill remains concerning. I

think they are expanding it so that minor injuries encompass the vast

majority of injuries that occur and make the exception, say, a fractured

bone or spinal cord injury.”

I think this is the concern raised by a number in this House over

the previous bills we’ve discussed as well. Again, I accept, at this

stage, the argument put forward by the Attorney General that, in fact,

the definition is meant to be a little loose in that one is hoping to

refine it through regulation as time moves on to ensure that minor

injuries are actually captured as minor injuries and not to ensure that,

in fact, there are loopholes that people can actually get away with and

kind of avoid the tribunal process, for example, or the maximum

coverage.

Again, long overdue for reform with ICBC. I’m very pleased that

government is stepping in to douse this so-called dumpster fire with

some water to ensure that ratepayers are protected, because something

had to be done. We could have done a couple of things. We could have

scrapped ICBC, thrown the baby out with the bathwater, and gone with a

full private insurance system, as some jurisdictions have done. We could

have gone to a complete no-fault insurance system, as other

jurisdictions have done.

I think what government has done here is stand back and say: “You

know what? We don’t want to throw the baby out with the bathwater. We

want to ensure that we keep this jewel, this jewel called ICBC.” But we

also want to ensure that we reform it, reform it in a way and a means

that actually ensures that ratepayers are getting value for their

investment in the ICBC auto insurance plan and to ensure that we clamp

down on false claims or those who are, in some sense, using the system

for their financial advantage through claiming of injuries that are not

actually as serious as would otherwise claim.

I’m a very strong supporter of this bill, and I thank the minister

for bringing it forward — recognizing, of course, that it won’t be

without some concern and controversy elsewhere. I thank you for your

attention, hon. Speaker.

R. Coleman: I’m pleased to enter into the discussion with regards to this bill

today. My comments will stray back and forth from Bill 22, relative to

the administrative tribunal, as to how it affects this piece of

legislation back and forth.

As I read this bill, I think the first thing we should recognize

is that this is no-fault light, relative to the insurance business and

how things are going to be changing and different. I know that we go on

about the issues in and around the deficit at ICBC. I will say on the

record that if you took the actuarials at the middle range versus the

high range, you would all of a sudden have half of ICBC’s on-paper

liabilities saved. However you do your actuarials over two years is one

of the biggest challenges for forecasting of that Crown

corporation.

[4:10 p.m.]

People will have many issues and discussions about this. I want to

go through a number of things at the front end of the bill but also, as

I go through it, to ask some questions about how this will work and

whether we’re giving the power to enter into the adjuster business, to

be able to adjust and decide all future claims in British Columbia’s

adjustment, to executive council, being cabinet — to decide what level

of injury is admissible, what type of treatment is going to be

admissible, to actually try and make sure that the numbers work, versus

work for the people who might be injured in an accident.

I raise that concern for a number of reasons. First of all, I have

been injured three times in car accidents. I can tell you right now that

some of the stuff that comes from a serious car accident doesn’t

necessarily show up in the first 90 days. Sometimes it takes longer. And

I can tell you, sometimes you are left with a lifetime of things like

massage therapy, physiotherapy, chiropractic and other things. I don’t

know how you will ever square that circle, because when a settlement is

done, a settlement is done.

I have a friend who had a car accident a number of years ago. This

individual was injured, went through the process with finally getting

into a settlement about a year after the accident. Wasn’t sure whether

to take the settlement or not. Had not consulted legal counsel but

decided the settlement was fair from a financial perspective, only to

find out about 60 days later that one of the things that wasn’t

diagnosed as a result of that accident was a small crack in a vertebrae

in the person’s neck. That person has been going for treatment and dealt

with pain now for an additional ten years, with no support

whatsoever.

The first thing I have concern about, as we go through this

discussion and we go into this, is the inability of people who may have

a minor injury, as this act calls it, and then actually go and deal with

the injury but have no support to understand what they’re getting into.

There are people who drive cars in our province that have issues with

language and literacy, who deserve to have the ability to have it

explained to them what it is they’re getting into if they sign off on a

settlement for a certain monetary value.

I think that’s important to understand as we go forward, because

those folks could be very much disenfranchised. As we deal with this, as

we come into the package, I’m going to go through the regulation’s

power-making portion of the bill for executive council, but I just want

to stop for a second and remember what the administrative tribunal that

we set up was supposed to accomplish.

It was supposed to take things out of the courts and put them into

a place where people, in an understandable way, could actually settle

their differences without having the courts. When I talk about

differences right now, it’s strata property owners. It’ll probably

eventually be people like residential tenancy. We’ll have that, rather

than an alternative to the courts.

The tribunal as it exists today, as I understood it when we did

the legislation, had jurisdiction to be able to take settlements in

those discussions up to about $35,000, which is the cap for small claims

court. This takes it up to $50,000 of awards through this administrative

tribunal. They have the exclusive jurisdiction on minor

injuries.

But the definition of a minor injury is somewhat troubling. I just

listened to the minister speak and say that minor injuries could become

major injuries if the chronic pain or the pain from that injury

continued after 12 months. But the format of this thing is set up so

that these things are going to be settled in 90 days. So at 90 days,

you’re done. And now you have chronic pain for the next five years. Is

the system going to ignore you? A fair question and one that needs to

be, quite frankly, canvassed as we go through this bill.

As we look at this thing, we have to think about what it is we

have in front of us. We have the ability now to evidently define a minor

injury and cap the claim of a person that has a minor injury up to

$5,500. That’s the intent — without any legal support, with the ability

for the tribunal to decide which medical experts they would listen to,

rather than the medical person that may be treating the person that was

injured in the accident to be begin with.

[4:15 p.m.]

It means that people could be ignored to what the real, true pain

is from what they’ve had in an accident. Now, on the flip side,

everybody goes to the argument that there are lots of people that are

doing false claims, people who are defrauding the system because they

make up their injuries, because soft tissue injuries, in particular, are

tough to diagnose and quantify — and always jump to that.

People should know that for years, including the last few years,

the increased focus on fraud at ICBC has been saving it a lot of money.

But it hasn’t actually…. It’s not the dollar amount that would actually

change the outcomes for the company.

I want to just talk about the government getting into the business

of being adjusters. I want to just do the first line under the act that

we have before us,

section 104. It has some very interesting language:

“Without limiting any power of the Lieutenant Governor in Council to

make regulations under any other Part of this Act, the Lieutenant

Governor in Council may make regulations under this Part as

follows.”

Basically, it’s a blank cheque for the executive council of the

government of British Columbia to make decisions.

The first

section deals with “respecting the examination and

assessment of injuries, the determination of whether an injury is a

minor injury and the onus of proof on such a determination.” All of a

sudden, the executive council of B.C. can decide what the determination

is on a minor injury and who has the onus of proof.

First of all, let’s start out with the presumption that this is an

ICBC client. They have bought an insurance policy that is to insure them

for specific uses, damages, comprehensive — whatever it is on their

vehicle. Are we going to continually adjust the language in the

contracts, relative to my insurance, when I buy it on an annual basis?

Will somebody actually disclose to every single client in whatever

language they have that certain things are no longer covered, that the

insurance they’re buying doesn’t cover what they think it does,

particularly with relative things like examinations for

injuries?

Is executive council going to actually say…? “Well, we’ll use

these doctors. This will be the only approving person for an examination

of an injury. And oh, by the way, your doctor doesn’t matter. Your

specialist doesn’t matter. We’re going to take the opinion here, and

we’re going to make our adjustment according to that.”

The next

section then leads you into even more troubling language

and concern. It says: “respecting the examination, assessment, diagnosis

and treatment of minor injuries, including, without limitation, (

i) establishing or adopting procedures, guidelines, criteria, requirements

or standards to be followed or met, as applicable, by claimants,

insurers and prescribed health care practitioners.”

Think about that for a second: establishing or adopting

procedures, guidelines. They’re actually going to be giving guidelines,

as to how you should assess a claim, from the executive council to a

policy that is given out by an insurance company to somebody who bought

the policy. And you have the ability to amend that at any

time.

You can also deal with the guidelines, the criteria, the

requirements or standards to be followed or met. But strikingly: also by

“claimants, insurers and prescribed health care practitioners.”

Presumably, that means cabinet will decide who is a prescribed health

care practitioner in this province, relative to an injury from a car

accident.

When the Attorney General was speaking a few minutes ago, he

mentioned that there would be people who had expertise in accident

investigations over at the administrative tribunal. Where are you going

to find them? Are they going to have the arbitrary ability, because of

their experience, to decide what actually happened in an accident scene

or damage of an accident they never attended or investigated?

The next piece is: “establishing time limits for the purposes of

obtaining an examination, assessment, diagnosis or treatment.” On one

side, we say to this tribunal: “You’re going to get these done in 90

days. Executive council can tell you that you have time limits for the

purpose of obtaining an examination, assessment, diagnosis or

treatment.”

Let’s assume there are a number of practitioners out there that

are now designated by executive council, through executive order,

through the administrative tribunal. We now establish time limits for

purposes of obtaining an examination, assessment, diagnosis or

treatment.

[4:20 p.m.]

Let’s assume we have somebody that has been in an accident, and

they have a sore shoulder and a bad neck. The diagnostic treatment needs

to determine what we have. So it may require certain types of

procedures. It could require X-rays. It could require testing on range

of motion, how your neck moves, how you go back and forth, where the

areas of pain are, how we can deal with that pain. It may also require

that there be an MRI in situations where somebody’s been through

it.

As we know, you have to get in to get an MRI or a diagnosis or

diagnostic or treatment determined. You have 90 days to diagnose and set

out an area of treatment, which will then go to the opinion of

professionals. That would be determined by the tribunal, without

necessarily requiring the input of the doctor and specialist that may be

treating you.

This one concerns me on a number of levels. I’ve had a few

accidents — not my fault. But I’ve been in a few accidents. I was once

in an accident as a passenger. As a passenger of a vehicle, after the

banging and bruising and all of that started to heal, I noticed about

six months later that even though my neck was better, my right shoulder

was hurting. It was only when there was finally an MRI done that it was

determined that I’d torn my rotator cuff in the accident.

Now, under these rules, I would be not eligible to go back and

say, “This was a serious injury,” because in 90 days, somebody had

already made the determination on my treatment and what have you, and

down the road, that would be the case.

Now, I can tell you, even through private MRIs, looking at the

capacity in British Columbia to get a private MRI, once you’ve gone

through a doctor, a specialist and all of those people to get to that

point, if you can get in and get that diagnosed in 90 days, you’re doing

well. But then there is no course of treatment at that point in time.

There is nothing to take to a tribunal to have a conversation about, and

you have the executive council determining that that’s the time frame

you have to live within.

The Attorney, to his credit, said: “Well, if it’s still there

after a year, we’ll call it not a minor injury anymore.” So we’re

determining, at one point, that within a year everything should be

healed,