British Columbia Hansard — 7 July 2020, p.m., Issue 335 (41st Parliament, 5th Session)

20200707pm-Hansard-n335

British Columbia — Debates (Hansard)

Fifth Session, 41st Parliament OFFICIAL REPORT OF DEBATES (HANSARD) Tuesday, July 7, 2020 Afternoon Sitting Issue No. 335 THE HONOURABLE DARRYL PLECAS, SPEAKER ISSN 1499-2175

PROVINCE OF BRITISH COLUMBIA (Entered Confederation July 20, 1871) LIEUTENANT-GOVERNOR Her Honour the Honourable Janet Austin, OBC Fifth Session, 41st Parliament SPEAKER OF THE LEGISLATIVE ASSEMBLY Honourable Darryl Plecas EXECUTIVE COUNCIL Premier and President of the Executive Council ............................................................................................................... Hon. John Horgan Deputy Premier and Minister of Finance ...........................................................................................................................Hon.

Carole James Minister of Advanced Education, Skills and Training..................................................................................................... Hon. Melanie Mark Minister of Agriculture.........................................................................................................................................................Hon. Lana Popham Attorney General.................................................................................................................................................................Hon.

David Eby, QC Minister of Children and Family Development ............................................................................................................ Hon. Katrine Conroy Minister of State for Child Care...................................................................................................................................... Hon. Katrina Chen Minister of Citizens’ Services...................................................................................................................................................Hon.

Anne Kang Minister of Education ............................................................................................................................................................ Hon. Rob Fleming Minister of Energy, Mines and Petroleum Resources ..................................................................................................... Hon. Bruce Ralston Minister of Environment and Climate Change Strategy............................................................................................. Hon.

George Heyman Minister of Forests, Lands, Natural Resource Operations and Rural Development ..............................................Hon. Doug Donaldson Minister of Health .....................................................................................................................................................................Hon. Adrian Dix Minister of Indigenous Relations and Reconciliation ......................................................................................................... Hon.

Scott Fraser Minister of Jobs, Economic Development and Competitiveness.............................................................................Hon. Michelle Mungall Minister of State for Trade...............................................................................................................................................Hon. George Chow Minister of Labour ...................................................................................................................................................................Hon.

Harry Bains Minister of Mental Health and Addictions............................................................................................................................ Hon. Judy Darcy Minister of Municipal Affairs and Housing.................................................................................................................. Hon. Selina Robinson Minister of Public Safety and Solicitor General ........................................................................................................... Hon.

Mike Farnworth Minister of Social Development and Poverty Reduction..............................................................................................Hon. Shane Simpson Minister of Tourism, Arts and Culture.....................................................................................................................................Hon. Lisa Beare Minister of Transportation and Infrastructure................................................................................................................ Hon.

Claire Trevena LEGISLATIVE ASSEMBLY Leader of the Official Opposition................................................................................................................................Andrew Wilkinson, QC Leader of the Third Party .................................................................................................................................................................Adam Olsen Deputy Speaker................................................................................................................................................................................

Raj Chouhan Assistant Deputy Speaker............................................................................................................................................................. Simon Gibson Deputy Chair, Committee of the Whole ................................................................................................................ Spencer Chandra Herbert Clerk of the Legislative Assembly ...........................................................................................................................................

Kate Ryan-Lloyd Law Clerk and Parliamentary Counsel.............................................................................................................................. Seunghee Suzie Seo Clerk Assistant, Parliamentary Services...........................................................................................................................

Artour Sogomonian Clerk Assistant, Committees and Interparliamentary Relations ..............................................................................................Susan Sourial Senior Research Analyst ................................................................................................................................................................. Jennifer Arril Senior Research Analyst ...................................................................................................................................................................

Karan Riarh Acting Sergeant-at-Arms..................................................................................................................................................................Greg Nelson

ALPHABETICAL LIST OF MEMBERS Ashton, Dan (BC Liberal) ......................................................................... Penticton Bains, Hon. Harry (NDP)................................................................ Surrey-Newton Barnett, Donna (BC Liberal) .....................................................Cariboo-Chilcotin Beare, Hon. Lisa (NDP)..............................................

Maple Ridge–Pitt Meadows Begg, Garry (NDP) .......................................................................Surrey-Guildford Bernier, Mike (BC Liberal) .........................................................Peace River South Bond, Shirley (BC Liberal)...........................................Prince George–Valemount Brar, Jagrup (NDP).......................................................................Surrey-Fleetwood Cadieux, Stephanie (BC Liberal)........................................................

Surrey South Chandra Herbert, Spencer (NDP) .......................................Vancouver–West End Chen, Hon. Katrina (NDP)...................................................... Burnaby-Lougheed Chouhan, Raj (NDP) .................................................................Burnaby-Edmonds Chow, Hon. George (NDP).................................................Vancouver-Fraserview Clovechok, Doug (BC Liberal) ..................................Columbia River–Revelstoke Coleman, Rich (BC Liberal) ................................................................ Langley East Conroy, Hon.

Katrine (NDP)...........................................................Kootenay West Darcy, Hon. Judy (NDP) ............................................................. New Westminster Davies, Dan (BC Liberal) ........................................................... Peace River North de Jong, Michael, QC (BC Liberal) ..............................................Abbotsford West Dean, Mitzi (NDP)................................................................ Esquimalt-Metchosin D’Eith, Bob (NDP) ................................................................Maple Ridge–Mission Dix, Hon.

Adrian (NDP)....................................................... Vancouver-Kingsway Donaldson, Hon. Doug (NDP)...................................................................... Stikine Eby, Hon. David, QC (NDP).............................................. Vancouver–Point Grey Elmore, Mable (NDP).........................................................Vancouver-Kensington Farnworth, Hon. Mike (NDP) ........................................................Port Coquitlam Fleming, Hon. Rob (NDP) ......................................................

Victoria–Swan Lake Foster, Eric (BC Liberal).............................................................Vernon-Monashee Fraser, Hon. Scott (NDP) ..................................................Mid Island–Pacific Rim Furstenau, Sonia (BC Green Party) .............................................Cowichan Valley Gibson, Simon (BC Liberal) ...................................................Abbotsford-Mission Glumac, Rick (NDP).........................................................Port Moody–Coquitlam Heyman, Hon. George (NDP) ................................................Vancouver-Fairview Horgan, Hon.

John (NDP) ................................................ Langford–Juan de Fuca Hunt, Marvin (BC Liberal) ........................................................ Surrey-Cloverdale Isaacs, Joan (BC Liberal) .......................................... Coquitlam–Burke Mountain James, Hon. Carole (NDP).................................................... Victoria–Beacon Hill Johal, Jas (BC Liberal).................................................Richmond-Queensborough Kahlon, Ravi (NDP)............................................................................... Delta North Kang, Hon.

Anne (NDP)......................................................... Burnaby–Deer Lake Kyllo, Greg (BC Liberal)..............................................................................Shuswap Larson, Linda (BC Liberal) .............................................. Boundary-Similkameen Lee, Michael (BC Liberal) ........................................................Vancouver-Langara Leonard, Ronna-Rae (NDP) ..................................................... Courtenay-Comox Letnick, Norm (BC Liberal).............................................

Kelowna–Lake Country Ma, Bowinn (NDP) .....................................................North Vancouver–Lonsdale Malcolmson, Sheila (NDP) ........................................................................Nanaimo Mark, Hon. Melanie (NDP) .......................................Vancouver–Mount Pleasant Martin, John (BC Liberal)....................................................................... Chilliwack Milobar, Peter (BC Liberal)..................................... Kamloops–North Thompson Morris, Mike (BC Liberal) ........................................... Prince George–Mackenzie Mungall, Hon.

Michelle (NDP)......................................................Nelson-Creston Oakes, Coralee (BC Liberal) ............................................................ Cariboo North Olsen, Adam (BC Green Party)............................ Saanich North and the Islands Paton, Ian (BC Liberal).......................................................................... Delta South Plecas, Hon. Darryl (Ind.) ........................................................... Abbotsford South Polak, Mary (BC Liberal) ............................................................................. Langley Popham, Hon.

Lana (NDP)............................................................... Saanich South Ralston, Hon. Bruce (NDP) ............................................................Surrey-Whalley Redies, Tracy (BC Liberal) .......................................................Surrey–White Rock Reid, Linda (BC Liberal) ................................................. Richmond South Centre Rice, Jennifer (NDP) ............................................................................. North Coast Robinson, Hon.

Selina (NDP) .........................................Coquitlam-Maillardville Ross, Ellis (BC Liberal)................................................................................... Skeena Routledge, Janet (NDP) ....................................................................Burnaby North Routley, Doug (NDP) ................................................. Nanaimo–North Cowichan Rustad, John (BC Liberal) ................................................................Nechako Lakes Shypitka, Tom (BC Liberal) ..............................................................

Kootenay East Simons, Nicholas (NDP) ......................................... Powell River–Sunshine Coast Simpson, Hon. Shane (NDP)..................................................Vancouver-Hastings Sims, Jinny (NDP) ........................................................................ Surrey-Panorama Singh, Rachna (NDP) .........................................................Surrey–Green Timbers Stewart, Ben (BC Liberal) ................................................................. Kelowna West Stilwell, Michelle (BC Liberal)...............................................

Parksville-Qualicum Stone, Todd (BC Liberal)..........................................Kamloops–South Thompson Sturdy, Jordan (BC Liberal)........................................ West Vancouver–Sea to Sky Sullivan, Sam (BC Liberal)................................................ Vancouver–False Creek Sultan, Ralph (BC Liberal) ...........................................West Vancouver–Capilano Tegart, Jackie (BC Liberal) ................................................................. Fraser-Nicola Thomson, Steve (BC Liberal)......................................................

Kelowna-Mission Thornthwaite, Jane (BC Liberal) ...............................North Vancouver–Seymour Throness, Laurie (BC Liberal) .......................................................Chilliwack-Kent Trevena, Hon. Claire (NDP) ................................................................North Island Wat, Teresa (BC Liberal) ................................................. Richmond North Centre Weaver, Dr.

Andrew (Ind.)................................................Oak Bay–Gordon Head Wilkinson, Andrew, QC (BC Liberal) ................................Vancouver-Quilchena Y ap, John (BC Liberal)............................................................Richmond-Steveston LIST OF MEMBERS BY RIDING Abbotsford-Mission............................................................................Simon Gibson Abbotsford South....................................................................... Hon. Darryl Plecas Abbotsford West......................................................................

Michael de Jong, QC Boundary-Similkameen...................................................................... Linda Larson Burnaby–Deer Lake....................................................................... Hon. Anne Kang Burnaby-Edmonds................................................................................Raj Chouhan Burnaby-Lougheed .................................................................... Hon. Katrina Chen Burnaby North .................................................................................

Janet Routledge Cariboo-Chilcotin .............................................................................Donna Barnett Cariboo North.................................................................................... Coralee Oakes Chilliwack ............................................................................................... John Martin Chilliwack-Kent ...............................................................................Laurie Throness Columbia River–Revelstoke .........................................................

Doug Clovechok Coquitlam–Burke Mountain.................................................................. Joan Isaacs Coquitlam-Maillardville ...................................................... Hon. Selina Robinson Courtenay-Comox................................................................... Ronna-Rae Leonard Cowichan Valley .............................................................................

Sonia Furstenau Delta North.............................................................................................Ravi Kahlon Delta South ..................................................................................................Ian Paton Esquimalt-Metchosin ..............................................................................Mitzi Dean Fraser-Nicola .........................................................................................

Jackie Tegart Kamloops–North Thompson .............................................................Peter Milobar Kamloops–South Thompson..................................................................Todd Stone Kelowna–Lake Country .....................................................................Norm Letnick Kelowna-Mission ..............................................................................

Steve Thomson Kelowna West ..........................................................................................Ben Stewart Kootenay East.......................................................................................Tom Shypitka Kootenay West........................................................................ Hon. Katrine Conroy Langford–Juan de Fuca .............................................................. Hon. John Horgan Langley .....................................................................................................

Mary Polak Langley East.........................................................................................Rich Coleman Maple Ridge–Mission.............................................................................. Bob D’Eith Maple Ridge–Pitt Meadows............................................................Hon. Lisa Beare Mid Island–Pacific Rim................................................................ Hon. Scott Fraser Nanaimo......................................................................................

Sheila Malcolmson Nanaimo–North Cowichan............................................................... Doug Routley Nechako Lakes........................................................................................ John Rustad Nelson-Creston ................................................................... Hon. Michelle Mungall New Westminster........................................................................... Hon. Judy Darcy North Coast ...........................................................................................

Jennifer Rice North Island.............................................................................. Hon. Claire Trevena North Vancouver–Lonsdale................................................................... Bowinn Ma North Vancouver–Seymour........................................................Jane Thornthwaite Oak Bay–Gordon Head............................................................Dr.

Andrew Weaver Parksville-Qualicum.......................................................................Michelle Stilwell Peace River North ................................................................................... Dan Davies Peace River South ................................................................................ Mike Bernier Penticton ................................................................................................. Dan Ashton Port Coquitlam...................................................................... Hon.

Mike Farnworth Port Moody–Coquitlam.......................................................................Rick Glumac Powell River–Sunshine Coast....................................................... Nicholas Simons Prince George–Mackenzie....................................................................Mike Morris Prince George–Valemount ..................................................................

Shirley Bond Richmond North Centre..........................................................................Teresa Wat Richmond-Queensborough.........................................................................Jas Johal Richmond South Centre ......................................................................... Linda Reid Richmond-Steveston ...................................................................................

John Y ap Saanich North and the Islands .............................................................Adam Olsen Saanich South .............................................................................Hon. Lana Popham Shuswap...................................................................................................... Greg Kyllo Skeena........................................................................................................... Ellis Ross Stikine....................................................................................Hon.

Doug Donaldson Surrey-Cloverdale ................................................................................ Marvin Hunt Surrey-Fleetwood.....................................................................................Jagrup Brar Surrey–Green Timbers........................................................................Rachna Singh Surrey-Guildford......................................................................................Garry Begg Surrey-Newton ..............................................................................Hon.

Harry Bains Surrey-Panorama ...................................................................................... Jinny Sims Surrey South ................................................................................ Stephanie Cadieux Surrey-Whalley ......................................................................... Hon. Bruce Ralston Surrey–White Rock .............................................................................. Tracy Redies Vancouver-Fairview.............................................................. Hon.

George Heyman Vancouver–False Creek........................................................................ Sam Sullivan Vancouver-Fraserview...............................................................Hon. George Chow Vancouver-Hastings ............................................................... Hon. Shane Simpson Vancouver-Kensington....................................................................... Mable Elmore Vancouver-Kingsway..................................................................... Hon.

Adrian Dix Vancouver-Langara................................................................................ Michael Lee Vancouver–Mount Pleasant..................................................... Hon. Melanie Mark Vancouver–Point Grey ............................................................Hon.

David Eby, QC Vancouver-Quilchena........................................................Andrew Wilkinson, QC Vancouver–West End .....................................................Spencer Chandra Herbert Vernon-Monashee ....................................................................................Eric Foster Victoria–Beacon Hill.................................................................. Hon. Carole James Victoria–Swan Lake.................................................................... Hon. Rob Fleming West Vancouver–Capilano...................................................................

Ralph Sultan West Vancouver–Sea to Sky................................................................Jordan Sturdy Party Standings: BC Liberal 42; NDP 41; Independent 2; BC Green Party 2

CONTENTS Tuesday, July 7, 2020 Afternoon Sitting Page Orders of the Day Committee of the Whole House.......................................................................................................................................... 11877 Bill 9 — Evidence Amendment Act, 2020 (continued) M. Lee Hon. D.

Eby Reporting of Bills................................................................................................................................................................... 11895 Bill 9 — Evidence Amendment Act, 2020 Third Reading of Bills ........................................................................................................................................................... 11895 Bill 9 — Evidence Amendment Act, 2020 Committee of the Whole House.......................................................................................................................................... 11895 Bill 19 — COVID-19 Related Measures Act (continued) Hon.

D. Eby A. Olsen M. Lee Bill 11 — Attorney General Statutes (Vehicle Insurance) Amendment Act, 2020 J. Johal Hon. D. Eby Bill 19 — COVID-19 Related Measures Act (continued) Reporting of Bills................................................................................................................................................................... 11903 Bill 19 — COVID-19 Related Measures Act Speaker’s Statement ............................................................................................................................................................... 11903 Third Reading of Bill 9

TUESDAY , JULY 7, 2020 The House met at 1:34 p.m. [Mr. Speaker in the chair.] Orders of the Day Hon. M. Farnworth: I call committee stage on Bill 9. [1:35 p.m.] Committee of the Whole House BILL 9 — EVIDENCE AMENDMENT ACT, 2020 (continued) The House in Committee of the Whole (Section

B) on Bill 9; S. Gibson in the chair. The committee met at 1:36 p.m. On

section 1 as amended (continued). M. Lee: Just before the break, we were having a dis- cussion regarding the discretion that is utilized under and available to the courts under subsection 12.1(6) as set out in

section 1 of this bill. I wanted to come back to the sug- gestion by the Attorney General that, as I understand it, that discretion makes it such that it is unknown as to what the cost savings from the effect of implementing this bill will be. I would like to ask the Attorney General just to outline how that discretionary provision works against

section 9, which sets out the limits around the $3,000 per expert report, the 5 percent cap on disbursements, as may well be set, and the number of experts. Hon. D. Eby:To be clear, the $3,000 and 5 percent num- bers are not finalized. We’re still engaging in work. Those numbers may change. They will be set by regulation, which is also, obviously, part of the uncertainty. But that is not the significant piece. The significant piece.

In the previous bill that was struck, there was an absolute limit on the number of experts, which made it a matter of math to determine how many cases are going forward, what number of expert wit- nesses are allowed by the rule for recovery and what the expected savings are. When you introduce discretion, and this bill does introduce discretion for the court, it’s difficult to know how many additional witnesses and in what cir- cumstances and how the courts will apply this test. [1:40 p.m.] We’ll wait and see how the courts apply the test — how the justices apply the test — that’s set out here.

Once we have an idea about how that is rolling out, then it’ll be easi- er to provide projections around potential savings for Brit- ish Columbians and improvements and efficiencies around the court system. Right now it is just not sufficiently cer- tain to be able to provide those projections, so I’m unable to do so. M. Lee: I wanted to note, though, that when we’re talk- ing about cost savings from implementing this bill, clearly, the three restrictions that are set out under

section 12.1(9), relating to cost per expert report cap on disbursements and the number of experts…. Certainly, in the instance of the first two items, as we understand that government is considering a $3,000 limit per expert report and a 5 per- cent cap on recovery in terms of what can be recovered in disbursements, those in themselves are cost items. Under

section 12.1(9), as the Attorney General just indicated, that is to be set by regulation. I would also point out that under

section 12.1(10) of

section 1 of this bill, there is, further to that, that anything that is set by way of regulation under that subsection (9) that is inconsistent with the rules of court will have those regulations prevail. So there is no discretion. There’s no discretion for the courts in terms of the dollar figure per expert report that is going to be set by regulation, whatever that amount might be. There is no discretion by the court in terms of the amount of disbursements that might be recoverable. Again, we understand the government is con- templating it to be capped at 5 percent. There is no discretion.

The regulations will trump the rules of court. So I still find it surprising that the Attorney General is indicating, in this part of our committee dis- cussion, that it’s only a hope that there will be cost savings from this bill. It just raises another question that I’ d ask to the Attorney General as to what the purpose of this bill is. Hon. D. Eby: I’m not sure how many ways I can say the same thing. I’ll do my best to say it differently, but it will be the same answer.

The fact that we don’t know how the court is going to use this tool that we’re giving them, in terms of exercising their discretion about the number of expert witnesses that will be allowed, makes it uncer- tain what savings, if any, will flow from this. We’re hope- ful. The reason for this bill is…. It’s either version 1.1 or 2.0 of an attempt to get expert costs under control in the courts.

Now, this is not clear to me, in terms of the opposi- tion critic, whether he understands or believes that there is an issue with expert costs and expert reports in the court. [1:45 p.m.] I think there is a fairly significant consensus that there is a serious issue on both the plaintiff and defence side of this adversarial expert culture driving costs and not assisting the courts proportionate to the cost that they bring to the system. Our hope is that we provide this tool to the courts, and the justices are able to use it to address this issue. It’s another tool that they have. But we can’t predict that.

We can’t predict what it will look like. As a result, any projected savings would be, at 11877

best, a guess. It’s not something that you can build a fin- ancial projection around for ICBC, for government or for anybody going to court, because it requires the court to wrestle with how they’re going to apply this test. Once it’s been through a number of hearings, then we’ll start to have an idea about how the courts are planning on applying this test and what it’s going to look like. We may be able to make some projections based on that, but at this stage, it’s premature. M. Lee: Well, I heard in the Attorney General’s response that it is with the view to get expert costs under control.

The significant limitations around the way in which injured British Columbians can bring forward and retain experts to support their claim for recovery…. Certainly that is being restricted and limited. That is where the bal- ance lies, in terms of what the benefit is of imposing these strict restrictions against the cost of a different sort to Brit- ish Columbians, which is their rights — their rights to be able to have access to justice, to be able to bring forward a full claim for recovery.

That brings me back to the statement that I’ve read out here in this committee process, where we have a senior leader in the management team of ICBC indicating that of the $400 million of expected savings on the rule 11-8 change, half of that amount would be due to lower pay- ments for damages. More expert reports make claims more expensive. Apart from getting expert reports under control in terms of the number and the cost, what this bill is also doing….

At least, if we follow the line of presentation that was there on the rule 11-8 proceeding, it is an attempt to reduce the amount of claims, because again, more expert reports make claims more expensive. That’s the statement of ICBC. Again to the Attorney General, is he not concerned about the trade-off that is occurring in this Bill 9? Literally, if it’s a hope that costs may reduce…. We’re not just talking about costs of the expert reports. We’re talking about costs of what ICBC will pay out to successful injured British Columbians in court.

I ask the Attorney General: is he not concerned that this bill has a different cost attached to it, in terms of the rights of injured British Columbians? [1:50 p.m.] Hon. D. Eby: So it’s pretty clear. The new subsection 12.1(6) — that the court is encouraged to exercise its dis- cretion, to determine whether or not the additional expert witness, beyond the limit — will do two things. One, will it bring new information that wasn’t otherwise available to the plaintiff? If not, then no extra witness.

The second piece is that if we don’t allow this witness to provide this evidence, will it provide prejudice disproportionate to the benefit of not increasing the complexity and cost of the proceeding? In other words, experts bring cost to hearings. They bring additional complexity. Given the value of the claim and the situation in front of the court, is it more unfair to allow the expert or to disallow the expert? What is the benefit that is brought compared to the cost of allowing additional experts? I have confidence that the courts can do this work and ensure fair proceedings in front of them.

The test is right there. If it’s going to be disproportionately prejudicial to the person who’s not allowed to bring the expert report forward, the court will allow them to bring the expert report forward. If it’s not, if it just increases cost and com- plexity, the court will say: “No. Sorry. Even though this issue wasn’t covered, you’re not allowed to bring an addi- tional expert report. ” I’m hopeful the courts will use this tool and will make those inquiries. They have this test now. They have this discretion to make these determinations.

I’m not sure that reading quotes from the other bill, when there was no discretion, one that we agree the courts have rejec- ted…. Chief Justice Hinkson’s reasons were clear. The reason was there wasn’t discretion, in large part — one of the reasons why he rejected that law. Here is the test. Here is the discretion to prevent unfairness to a party in a vehicle injury proceeding. M. Lee: We’re spending some time on this balance. At least I see, in this bill, the need for that. I’m still not hearing from the Attorney General about any consideration or concern about access.

We have canvassed, in the previous committee, the challenges with these new restrictions, including how that discretion of the court will be met and worked through. This is what I have continued to raise concern about. It’s the utilization of the roles that the Attorney General plays, which are, again, focused on cost; focused on redu- cing the number of experts, costs around those experts; the disbursements that a plaintiff, an injured British Col- umbian, will be entitled to recover — to be limited on the total amount of recovery of that claim.

This is where there has been a real confluence of the roles that he plays, at the detriment of the rights of injured British Columbians. Because, clearly, this bill is about managing experts and their costs.

But fundamentally, that is more than likely to be for the benefit of ICBC as the chief litigant of this province — the one entity for whom litiga- tion, through our court system, is involving as a defendant. [1:55 p.m.] Y et the Attorney General is able to utilize his other man- date, which is to protect the rule of law, the rights of British Columbians, and is bringing forward an amendment that will reduce that. That’s where the trade-off becomes, and that’s where the conflict lies.

As we’re having this discussion about costs, I hear the Attorney General state that it’s no longer estimated cost savings from this bill; it’s a hope. I get the point about discretion, but as we’ve just talked about, that discretion 11878 British Columbia Debates Tuesday, July 7, 2020

doesn’t apply, again, to the costs per expert report or the percentage of limitation on disbursements. There’s no dis- cretion there. The regulations will trump or prevail. So this is where my concern lies in this bill, coming forward in this manner. As I have stated on Bill 11, as well, I believe that there is no proper consideration for the rights of British Columbi- ans when this bill comes forward in this manner. We have talked about many elements of the bill, and more to come in this committee stage. But this is my concern in terms of the impact that this bill is having on the rights of British Columbians.

Let me say that, as we look at an area of the bill that the Attorney General had brought forward, we talked about the 5 percent limit and where that limit, in terms of the data supporting it, is based on data that ICBC has avail- able, which is 70 percent of the body injury claims. So let me ask, first, to the Attorney General: is there any other precedent for the imposition of a 5 percent limit or a percentage limit on disbursement recovery anywhere in Canada? The Chair: Attorney General. Hon. D. Eby: Hello, Mr. Chair. Thank you for the chance to respond.

A lot there from the critic, and sort of a bit of a speech before the question. The answer to the question is: no, not anywhere that we’re aware of in Canada. With respect to his comments, I….

The implication, although he’s not said it, of the member’s speeches and remarks is that he supports an unlimited number of expert witnesses in motor vehicle collision litigation, regardless of the cost, regardless of duplication of evidence between wit- nesses, regardless of expert shopping and all the issues that have been identified — the polarization; the expense and complexity; the problems with access to justice identified by Chief Justice Brenner and Allan Seckel in their report, by commentators in the United Kingdom and by com- mentators in Australia that led to very significant restric- tions on expert witnesses in those jurisdictions.

I think it’s one thing to stand up and ask questions about the act, which is the important and critical role of the opposition here. I think it’s quite another to suggest impro- priety in putting limits in place on experts following com- mon-law jurisdictions around the world, following the comments of a former chief justice and a former Deputy Attorney General under the B.C. Liberals and then chief of staff — still a very respected person, who is doing work for this government right now at the cross-jurisdictional COVID advisory team. Y ou know, all these people say there’s a problem with expert reports.

Y ou need to get them under control. We have a bill in front of this House that proposes to do that. The member suggests that it’s improper that this came for- ward because I am the minister for both ICBC and the Attorney General. [2:00 p.m.] I’ll just leave it at that, I think. If it is the member’s position that the role of Attorney General is to turn a blind eye to a serious issue around expert reports in our court system in order to preserve the existing system exactly as it is, then I’ll have to disagree with him. I don’t believe that’s the role. Many Attorneys General, including some that served under B.C.

Liberal governments, would probably disagree with that too. I know that at least one Deputy Attorney General would disagree. I’m not quite sure what his posi- tion is, in terms of expert witnesses. But I guess it doesn’t matter, because it’s important to ask the questions. The questions, I believe, are fully answered by subsection 12.1(6), which allows the court to allow additional experts in order to prevent unfairness to any party. M. Lee: Clearly, an Attorney General of this province needs to protect, preserve and sustain the proper adminis- tration of justice for our province.

My challenge is not with that role. My challenge is the Premier, quite frankly, putting the member from Point Grey in the dual role of being both the Attorney General — to do what I just said and as the Attorney General described in his response — and also with a mandate first to do a review of the cost structure of ICBC. That is effectively what the Premier asked the Attor- ney General to do. But what has happened here, of course, beyond the review, has been a series of reforms. This is one of them. This has been driven out of a need to reduce costs for ICBC in that cost saving.

While we all want to make life more affordable and are concerned about ICBC rates and the model it has in place, the Attorney General has a spe- cific role. That primary role is to protect the rights of injured British Columbians. My concern with the bill is the overall framing of the bill and the conflict between those two roles. Let me just come back to the 5 percent limit. The Attor- ney General indicated that there is no other precedent in Canada for this 5 percent limit.

This is an additional restriction, beyond limiting the number of experts, which is, again, what rule 11-8 did — ruled unconstitutional. “Okay, put some discretion in, in this bill. ” This is beyond that. This now goes to imposing a limitation. When we look at the role of that 5 percent limit, in the previous com- mittee process the Attorney General indicated, based on the data maintained by ICBC, that 70 percent of the claims are falling within that 5 percent. What the Attorney General stated is that for those remaining 30 percent, there are a number of potential explanations of why they’re outliers.

When I asked what the ICBC reimbursement typically is for disbursements on Tuesday, July 7, 2020 British Columbia Debates 11879

those 30 percent of cases excluded, the Attorney General said that we don’t have those numbers. [2:05 p.m.] Does the Attorney General, since early March, have those numbers available, in terms of what the level of ICBC reimbursement is for the other 30 percent of cases? Hon. D. Eby: I do have those numbers. For files with a value of less than $100,000, 28 percent of them exceeded that 5 percent standard. Of files worth between $100,000 and $200,000, 70 percent of them exceeded that 5 per- cent standard. Of files $200,000 to $1 million, 65 percent of them exceeded that 5 percent standard.

Of those over $1 million, 25 percent of them exceeded that 5 percent standard. I would like to underline for the member that no final decision has been made about the 5 percent amount or about the per-expert-report amount. That’s still a live dis- cussion within the ministry, but I think the numbers show some trends for him, of the files that exceed that 5 percent standard. I do want to just briefly respond to the member’s sug- gestion that because ICBC is involved in litigation, it’s improper for me to be tabling this bill.

I wonder what he thought when I tabled the opioid litigation bill, when he voted for it — which set out the rules for litigation around opioid manufacturers and distributors, the class-action lit- igation that’s underway where Ministry of Attorney Gen- eral lawyers will be litigating that according to the rules that were set out in that bill.

I wonder what he thinks about the fact that the Attorney General is the head lawyer for civil litigation in the province and that any change to any process in court, through the Evidence Act or otherwise, would inherently have impacts on quite an extensive portfolio of civil litiga- tion involving the government. Under the member’s logic, the Attorney General could not take any action in relation to our court system. Anyway, I’ll leave that where it is.

I certainly encourage the member if he has some thoughts about the appropriate percentage of the value of a claim, as a limit for recoverable disbursements or for expert reports. I’ d be glad to hear them. As I say, this is an ongoing discussion and ongoing policy analysis happen- ing within the ministry about what an appropriate and fair level should be. M. Lee: Thank you to the Attorney General and his team for sharing that level of detail around the breakdown. I’m recognizing that the disbursement cap has not been set by regulation.

I do acknowledge that again, certainly. [2:10 p.m.] Just so I understand the numbers that were provided, for the 30 percent of cases that would be excluded from the other data that was provided…. We’ve got a situation where one set of data indicates that 70 percent of cases fall, generally speaking, under the 5 percent level. Of the remaining 30 percent…. The Attorney General has read into the record what the general breakdown of those cases would be, depending on the dollar value involved with those cases. I would just ask for clarity on the initial set of 70 percent of claims.

How many of those claims would actually have no disbursements charged at all because they don’t end up retaining a lawyer or going forward to trial? Hon. D. Eby: The data set that we’re working with here is the files where ICBC has actually paid out disburse- ments to a party. There is no data available to me immedi- ately, at least, and possibly at all — I’m not sure; I’ll try to find out — about zero disbursement files.

Of those files where disbursements were paid out by ICBC, I can advise the member that 55 percent of files were below 4 percent of the settlement value, and 10 per- cent were between 4 to 6 percent. The 1 percent of pay- ments to the Crown are not included in this. So 4 to 5 percent. The effect of this is that the majority of cases come in under that 5 percent threshold. Again, not determinative for us, in terms of where that will be set, but certainly instructive of where these files are. M. Lee: I just wanted to note the Attorney General’s pre- vious response.

I certainly recognize the role of the Attor- ney General, including within this Legislative Assembly and for cabinet and government, as the chief legal officer reviewing legislation that comes forward, including the opioid recovery act and other legislation that the Attorney General mentioned in his response. [2:15 p.m.] What I’m referring to, of course, are the specific roles that the Premier has given and assigned to him, which involve, as well, not only the ministerial responsibilities but the overall management of this particular Crown corp.

With the level of political discourse that has occurred in this province over the last several years…. We’re not talking about a particular set of rules in one case, unless we’re talking about this particular bill. We’re talking about a whole series of initiatives and reforms that this Attorney General has brought forward for the benefit of ICBC. I think it is hard for British Columbians to distin- guish, at times, which role the Attorney General is play- ing and the conflict between the roles. That’s what I’m certainly challenged with.

Let me say, then, that in terms of the information that the Attorney General is providing, when I look at the report of ICBC entitled Impacts of COVID-19 Pandemic on ICBC dated May 14, 2020…. On page 7 of that report, under the heading “Other financial risks: prior year claims, Evidence Act legislation and court challenges” — hence Bill 9 — there is a paragraph that states: “The pandemic has also resulted in a delay to the provincial government’s proposed changes to the Evidence Act, ” vis-à-vis Bill 11880 British Columbia Debates Tuesday, July 7, 2020

9. “The changes would have helped ICBC mitigate some of the im- pact from a B.C. Supreme Court decision in October 2019, ” which we’ve been discussing here as the Crowder decision, “that resul- ted in previously recognized savings coming from a limit on ex- pert witnesses and reports, now being reversed, ” as ruled unconsti- tutional. “The legislative and supporting regulatory changes under the Evidence Act did not pass by March 31, 2020, as expected.

As a result, ICBC could not recognize the associated claims cost savings in fiscal 2019-20. ” The Attorney General earlier indicated that it hasn’t been recognized, which is consistent with what this says. But there is an expectation that if by March 31, 2020, that legislation had passed in this House — but for the COV- ID-19 pandemic — there would have been cost savings that would have been recognized in the fiscal 2019-2020 period for ICBC.

Between the time that we stopped in our committee stage on March 4 or 5, and the need for the fiscal period to set in place those cost savings, was there not an assessment of the projected cost savings due to the change to the Evid- ence Act by virtue of this Bill 19, as Bill 9, as this statement seems to indicate? Hon. D. Eby: Y es, there was an assessment. The assess- ment was that the savings are too uncertain to provide any financial level of comfort that the numbers could be relied on. We’ve explained it to him several times. Happy to explain it again.

No projection of savings from this bill has been included in ICBC’s financial projections because of the uncertainty that followed from the assessment of the potential impact of this bill. M. Lee: I heard the Attorney General’s response. I will just point out that the statement that I read made no indic- ation of that. The only indication in ICBC’s report to the public is that the legislative and supporting regulatory changes, under the Evidence Act, did not pass by March 31 as expected.

As a result, ICBC could not recognize the associated claims cost savings in fiscal 2019-20. [2:20 p.m.] Does this statement, which is in an ICBC document…? Does the Attorney General actually agree with that state- ment, or is it incorrect? Hon. D. Eby: I mean, it’s a partial explanation. The bill didn’t pass, so certainly no financial projections could be based on it. But it’s not a complete explanation. The com- plete explanation is that there is just insufficient financial certainty around the impact of the bill to project savings from it. M.

Lee: I understand from the Attorney General’s response that it is a partial explanation that was indicated in the ICBC report, as opposed to a full explanation. The Attorney General is giving that explanation to us here, as I stand to understand that. It does beg the question. In the future, after this bill passes, if it does, in this House, will ICBC recognize any associated claims’ cost savings in its fiscal periods? Hon. D. Eby: It’s certainly our hope that there will be savings and efficiencies, not just for ICBC but generally in the system, that flow from this.

But as I said, the total value of those, or even whether they will materialize at all, is too uncertain, given the discretion that’s in this bill. Our hope is that the courts will use this tool, as they see appropriate, to restrain some of the excesses in expert reports that we’ve seen on all sides, but that remains to be seen. My hope is yes, but we’ll see.

Once there is a sufficient level of jurisprudence involving this new test and the discretion, it is certainly possible that ICBC could use that actuarial information to project what things are going to look like in the future, which is the job of a significant number of people over in the insurance company there. But at this stage, it’s just too uncertain. M. Lee: I just wanted to come to some statements that the Attorney General made in committee stage back on March 5. We were discussing the impact of these changes to, for example, plaintiffs who have lower incomes.

The Attorney General indicated, in response to one of my questions, that the consideration for someone who is low income is that it’s really important for them to resolve the dispute as quickly as possible and to settle it. I wanted to clarify the Attorney General’s view on this, in terms of the importance for people who have lower incomes to resolve their disputes quickly, as soon as pos- sible, under this potential cap on disbursements at 5 per- cent or any other level.

How does the Attorney General see the working of con- tingency arrangements in this regard, where, as we under- stand, the personal injury lawyers who enter into contin- gency fee arrangements with their clients, regardless of the length of the proceeding, their charge is the same? [2:25 p.m.] I ask the Attorney General: is the Attorney General not concerned that this disbursement limit will actually limit the ability of individuals who have lower incomes to actu- ally maximize their amount of recovery? Hon. D.

Eby: I think the member will find, if he’s inter- ested in contingency fees and concerns, that certainly I share it with him, about how they operate. He may be interested in the pre-litigation payment initiative that’s in Bill 11, which recognizes that in many cases, ICBC has no dispute over a certain amount of payment to an individual. There is an amount above that that is in dispute. A litiga- tion claim could materialize for someone or not, depend- ing on how the litigation goes. But that is the

section that should be subject to the contingency fee, not the amount that everyone agrees the person’s entitled to. Tuesday, July 7, 2020 British Columbia Debates 11881

With the pre-litigation payment initiative, ICBC can pay the amount that is not under dispute. Because it is paid in advance of a lawyer being retained and without any pre- judice to the person who accepts the payment, a couple things will happen. One is it won’t be subject to a contingency fee. Two is if they decide to go to litigation, they have money in hand and they are able to use that to resource additional claim activity if they want to do that.

They don’t have to bor- row money from their lawyer at a 10 percent interest rate, which is a shocking practice that I did not know was hap- pening in the province until I took on this job — that law- yers were lending money to their clients in this way.

Obviously, it’s all evidence, in my opinion, that the cur- rent system is not a great one and why we are shifting, in May, to a significant reform of this system — one that will not depend on whether or not a person can borrow money from their lawyer to endure a multi-year court battle to access money they’re entitled to and where they won’t have their own insurance company hiring a lawyer for the at- fault driver to fight them in court. But I digress.

I don’t believe that there is any impact of this proposal on contingency fees received by personal injury lawyers or paid by clients out of their settlement, if that was the mem- ber’s question as I understand it. There is no impact of this bill on contingency fees. That’s Bill 11. M. Lee: I certainly look forward to continuing the dis- cussion regarding pre-litigation payments in the context of Bill 11 to come.

Of course with Bill 9, not knowing the status of Bill 11, we’re talking about this particular set of changes and the impact it will have on people of low income and the fact that because of the significant ret- roactive effect of this bill, we’re also talking about claims that have already been in process to date. But we will come to that. My question, and concern, is around the concept that the Attorney General seems to be indicating — that the faster we get individuals through the court process or the pre-litigation process, through settlement or otherwise, the better for them. I don’t disagree with that.

But for those plaintiffs, injured British Columbians, who are currently or in the future, in the absence of Bill 11 passing, in contingency fee arrangements with their law- yers representing their interests, there is no change and no difference to the speed aspect.

I just wanted to clarify that one point, but then go on to say this. [2:30 p.m.] When we look at this disbursement rule again under subsection 12.1(9), if an individual is a person who has a lower income versus a person who has a higher income, the 5 percent disbursement limit for the purpose of discus- sion here will actually act to limit the ability of that lower- income individual to seek recovery of their disbursements. It has, actually, a disproportionate effect. [R.

Chouhan in the chair.] An individual who is seeking compensation for their full loss, who is making less income to an individual who is, will have less of an ability to fully recover their dis- bursements in the action, by virtue of this 5 percent cap. Is the Attorney General concerned about any dispropor- tionate effect on plaintiffs or claimants who have differ- ent levels of income? Hon. D. Eby: We’re committed to getting the number right in terms of the recoverable disbursement, the per- centage of the overall claim and the value of the expert reports. The impact on all plaintiffs will be the same.

If they go over the limits, when they’re set, they will not be recoverable disbursements. They will come out of the settlement amount. It won’t matter what the person’s income is. If the member is asking whether, under the current tort- based auto insurance system, someone with more resources, more income has a better time of it than some- one with less income and less resources, I think that is indisputably true. It’s unfortunately true in our court sys- tem generally. It’s not particular to auto tort claims.

It’s something that, through legal aid reforms and through other justice reforms around access to justice, we’ve tried to take some of the rough edges off. But it is true. If you have more money, you can hire a more senior lawyer in our court system that has more experience, that is better able to litigate your claim. It’s just a reality of our court system which I take on, as Attorney General, as one of my mandates — to try to reduce that disparity between people who have resources and people who don’t.

If you have money, you don’t have to borrow money from your personal injury lawyer while you wait for a set- tlement at, in many cases, 10 percent interest. That is a big problem with the current system. It’s why we’re changing the system; why we’re going to a system where people don’t have to wait years for their settlement; and where, if they’re going to get the care that they need, they’re not going to have their insurance company hiring a lawyer for the at- fault driver to fight them in court.

The insurance company will have one duty — again, Bill 11; look forward to it — which is the duty to assist people in understanding all the benefits they’re entitled to. It’s not the duty to the at-fault driver to defend them against the reasonable claim that they were at fault in the accident. If the member wants me to agree that the current system is a good one and that changes to it are therefore making it worse, no. I think this change is meant to make a signi- ficant improvement to an issue that’s been identified over a long period of time.

But it is a change to a system that is not working for British Columbians. It is in the context of a large-scale reform we’re doing that’s going to save people money and improve their benefits. 11882 British Columbia Debates Tuesday, July 7, 2020

There will be a difficult transition, I acknowledge, for many people who work in this sector. We continue those discussions with people in that sector to try to mitigate some of that impact. [2:35 p.m.] But the fact is that the change is coming and that our attempts here to mitigate some of the excesses of the sys- tem as we wait for the transition period to the new system is just that. We’re trying to mitigate some of the excesses, which is an important thing to do for British Columbians because they have to pay for all of these extra reports through their car insurance. M.

Lee: Certainly, we know that ICBC has been chal- lenged in different ways and that, whether it’s under the previous government or this current government, there have been many efforts to try and improve that. What we’re talking about, though, is how detrimental this bill is to British Columbians. Let me use this as an example here, just to use some numbers by way of illustration.

In terms of the disproportionate impact that the per- centage cap would have on an income earner, if there’s a person who makes, let’s say, $200,000 per year and loses a year of income as a result of a motor vehicle accident, that person would, under this Bill 9, be able to recover at least $10,000 of disbursements, 5 percent of that $200,000 loss. If a person who is making $20,000 per year loses a year of income as a result of a motor vehicle accident, that per- son can only be assured they would be recovering $1,000 of disbursements.

This is a situation where — beyond the actual resources of an individual, a person who is of higher income versus a person of lower income; we’re not talking about that — we’re talking about the fact that the percentage of recovery actually has a disproportionate effect on an individual who makes a higher income versus a person who makes a lower income, based on the amount that that person would be able to recover. That means a lower-income person would only be able to recover…. I recognize that’s a low income. That’s a pretty low income, at $20,000.

But whatever number you pick, say $40,000, the percentage of recovery, even at a $2,000 level, is quite low. As a result, that makes that individual more susceptible to the kind of low settlement offers that ICBC has been utilizing, at least since February of 2019. This is what’s forcing many of these claimants into having to go to court, further.

When faced, under this bill, with a choice of accepting a lowball settlement from ICBC versus the recognition that they can’t even recover a small percentage of their dis- bursements, this has a severe effect on that individual’s ability to get justice, to access justice. This is the concern. Again, does the Attorney General not see the concern I have, relating to that disproportionate effect, in view of the example I just gave? Hon. D. Eby: A couple of things.

First of all, in terms of claims worth less than $100,000, which the member’s example is an example of, only 28 percent of those claims would be affected by a 5 percent disbursement level;

whereas for claims worth $100,000 to $200,000, it’s 70 per- cent of those claims; and for $200,000 to $2 million, it’s 65 percent of those claims. [2:40 p.m.] The lower-value claims are less affected, so the member’s suggestion of disproportionate impact is not borne out by the statistical reality of where the expert report expenses are being incurred.

I think that if there were a world where you could have unlimited expert reports, pay those experts whatever they charged, present those to a court and get that full recovery back from ICBC and it wouldn’t affect car insurance rates, that would be a great situation. But there are finite resources.

What the member is proposing, maybe — he’s just ask- ing a question; it’s not fair to say he’s proposing it, but dev- il’s advocate here — is that there be no limit on expert reports, that there be no limit on recoverable disburse- ments and that people who drive cars in British Columbia should pay to subsidize that system. Who does he think will be most affected by increased car insurance rates under that system, with out-of-control expert reports? It’s going to be poor British Columbians, people working low- wage jobs.

That is exactly why, to benefit low-income British Col- umbians, people who are hurt by higher car insurance rates, we have the reform coming in, in May of this year to fix the system and save them 20 percent on their car insurance. So to suggest that an initiative to help control an area of costs that is a source of wide agreement across our justice system and common-law systems across the world as a problem area and to say that this is what’s going to hurt poor people is bizarre, because it’s not borne out by the evidence.

Secondly, it proposes to subsidize this out-of-control system by charging more for car insurance to the same poor people the member says he’s trying to protect. It’s a tough pitch, I would say, to low-income British Columbi- ans that they need to pay 20 percent more for their car insurance to maintain this current system — which, I don’t know, I think we all agree isn’t working very well.

I’ll leave that to that member, that he’s actually defend- ing their interests by charging them 20 percent more or asking them to subsidize these experts that charge $10,000 a report or $50,000 worth of expert reports on a $100,000 claim — that that’s somehow to the benefit of low-income British Columbians. M. Lee: Well, to be clear, I’m not the person developing, on the fly, all sorts of initiatives and programs to reform ICBC. That is the Attorney General. That’s what has been happening.

On any given day, there’s a new product reform here, there’s a new product reform there, and it’s just a Tuesday, July 7, 2020 British Columbia Debates 11883

hope. That’s what we have discovered here today. It’s just a hope. It’s a hope and a prayer. My concern is about the rights of injured British Col- umbians. When we look at this 5 percent disbursement limitation, no other jurisdiction in this country has that disbursement limitation. Where did this come from? Let me ask the Attorney General what the origin was of this disbursement limitation. Where did this proposal originate? Hon. D. Eby: Let me get this straight. The member hands over….

To the member’s credit, he wasn’t there in the previous government. [2:45 p.m.] They hand over to our government a corporation losing $1 billion a year. Then the member stands up and says: “Oh gosh, you really seem to be rushing these reforms. ” Y eah. Y eah, we’re rushing the reforms, Member. Y ep, $1 billion is a pretty significant bleed. I’m happy to say that pre-COVID, we were on track to a break-even year for the first time in a long time at ICBC, with the actual actuarially indicated rate — that is, the rate increase required to ensure ICBC will break even — of zero percent. Pretty good. Pretty good start.

We’re not done, because rates are still too high. So May — a new sys- tem, 20 percent savings for British Columbians. Stabilize the patient; make the patient better. That’s where we are. Where do the ideas come from, the member wants to know. Good question. For the 5 percent proposal…. Again, that’s not a final number. Those discussions are ongoing. I’m glad to hear suggestions from the member about an appropriate value, from his perspective.

It was a breaking point in terms of where the disbursements paid out by ICBC to claim files seemed to be appropriate, in terms of the number of files above and below that threshold, and similarly for the $3,000 expert limit. Glad to hear feedback about both of those numbers and where the member or other stakeholders feel they should be. That there should be a limit, that there needs to be a lim- it on the cost of expert reports and recoverable disburse- ments…. I’m not sure if, from the member’s perspective, that’s a debatable point. There should be limits.

The reas- on there should be limits is that there are not infinite resources to pay for these recoverable disbursements. If there is one side that can generate as many expenses as they want in litigation and have them all paid back and there’s no governor and no control on that and ICBC has to pay those costs, or the controls and governors that are there are, for one reason or another, not capable of con- trolling that, then there has to be a limit put in place.

Because if you can incur expenses to the point of 50 per- cent or more of the value of a claim, then everybody’s got to pay for that through their car insurance. And that’s not fair. So there should be these limits. Glad to hear sugges- tions from the member about where they should be com- ing from. Some of these reforms came from civil justice task force reforms. Other proposals came from lawyers who practise in the area. Other proposals came from other jurisdictions — the United Kingdom, Australia.

I can’t advise the mem- ber exactly where this particular piece, the percentage of recoverable disbursements, originated. We’ll do some work and see if we can track down the original source of that. We just don’t have it at the moment for him. Whether it came from a public servant, whether it came from another jurisdiction, whether it came from a civil justice task force report, whether it came from wherever, if we don’t agree that there needs to be a limit on these expenses being incurred, then what does it matter where it came from? We just don’t agree on the bill.

I understand that, if that’s the member’s perspective. M. Lee: Well, I think that we’ve often been able to have good discussion about bills of this nature without going back into history. The Attorney General just did that. Of course, we know what the previous government, when it turned over the keys with a $2.7 billion surplus to this gov- ernment, looked like. Interjection. M. Lee: Members on the other side may laugh about that. But when we talk about $5 billion towards COVID recovery, who can fund that?

It’s because the previous government was able to manage the fiscal affairs of this province so that it could meet this rainy day, this hor- rible rainy day. [2:50 p.m.] The scale of the losses at ICBC continued to escalate when this government took over. We’ve talked at length — not here in this particular bill debate, and we will have another round in estimates on ICBC — about the fiscal position of that Crown corp.

But when I talk about product reform, one of the product reforms that the Attor- ney General had indicated before was, of course, the minor injury cap reform, which the Attorney General had estim- ated would result in $1 billion of savings. Has that actually occurred? Well, if that has occurred and if there are cost savings from this Bill 9 — although we’re not sure; it’s still a hope — why is it that we learn that the Attorney General has been developing on the side while doing all of these other product reforms no-fault, which is what’s coming forward in Bill 11?

If he had such confidence in his product reforms in the past, the $1 billion of savings by limiting minor injury, by including brain injury and concussion, after he said he wouldn’t do that, by way of regulation, as we will see in Bill 11, with all of the series of regulations to be determined in terms of the nature of that bill, we still have here in this House this Bill 9, which we still don’t have definition on. The Attorney General has repeated to say that we don’t know what the level of disbursement will be. Is it 11884 British Columbia Debates Tuesday, July 7, 2020

going to be 5 percent or lower? We don’t actually know the number of the amount that would’ve been limited for each expert report. We all understand, in terms of costs to British Columbians, there is only one taxpayer here. But at what cost? When we’re talking about someone who has been injured catastrophically — a quadriplegic, someone who has a severe brain injury — why is it that this Attorney General can stand here and limit their ability to recover? That’s what we’re talking about. Y ou know, there are other forums, certainly, where we could talk about ICBC further, and we certainly will.

If I could ask about joint experts here. At the committee stage on March 5, we talked about the use of joint experts. One of the reasons for this bill is to encourage, in the view of the Attorney General, the use of joint experts. So I’ d like to come back to that, in the sense that…. How will it work when a party cannot know the value of a claim without an expert opinion, yet that party is expected — and expects the court — to factor in the value of the claim when the court is assessing whether or not to allow addi- tional experts? [2:55 p.m.] Hon. D. Eby: So a number of questions the member asked there.

I’ll try to take them in order. Where is the $1 billion in savings? The savings at ICBC are consistent with projections around the initial round of reforms. The member will remember that ICBC was los- ing $1 billion plus a year and that pre-COVID was project- ing, finally, a break-even year based on the minor injury reforms and an actuarially indicated rate of zero percent for the increase to car insurance for the following year. So that’s where the savings are. They materialized. So, good news, but not enough.

I’m not sure if the member gets the kinds of letters that I do about the cost of car insurance in British Columbia. I get a lot of letters from British Columbians saying that car insurance is too expensive. People who write and say that are right. We need to do better. So phase 2. Stabilize the patient, phase 1. Phase 2, get the patient back up on the patient’s feet. That means 20 percent savings for British Columbians and better benefits through the reforms that we’ll talk about in Bill 11.

The member wondered, because the $3,000 and 5 per- cent limits are yet to be finalized, whether there were some idea that they might be lower, that there might be less than $3,000 for an expert report or less than 5 percent of the claim recoverable in disbursements. That is not what’s under consideration. All that’s under consideration is the potential for increasing those numbers. The member speculated that those most affected would be those catastrophically injured. In fact, for claims worth more than $1 million, 75 percent of those conclude within the 5 percent disbursement limit.

So they’re actually a cat- egory of significantly lesser affected claims. Then finally, the member wondered about how a court could possibly apply the test if they didn’t know the value of the claim — the test in sub 12.1(6), if they didn’t know the value of the claim, because the party hasn’t been able to retain an expert. [3:00 p.m.] I’ve read it a couple times now just to make sure. Sub-

section 12.1(6)(

b) says: “without additional expert evid- ence, the party making the application would suffer preju- dice disproportionate to the benefit of not increasing the complexity and cost of the proceeding. ” So I’m not sure where in that test it talks about the value of the claim. When I read it, it doesn’t. It talks about prejudice to the party. It talks about the complexity and cost of the pro- ceeding. But it does not talk about the value of the claim. It’s not part of the test. M. Lee: I know that we canvassed some of this, as well, in terms of this, previously at committee. So some of this may go back through that.

But just for the benefit of fur- thering the response to the question, how is a court expec- ted, then, to assess both the prejudice and the benefit? Hon. D. Eby: This is an example of the kind of test that judges are regularly asked to apply under the rules of court and in other areas: whether a matter is suitable for a sum- mary hearing, whether it’s appropriate for a jury. Asking courts to evaluate prejudice versus the complexity and cost of the proceeding is something that our judges are cer- tainly capable of doing and do on a regular basis. M.

Lee: I just wanted to continue to come to this in terms of what the expectation would be between ICBC and a plaintiff. Of course, we know that it is the burden of responsibility…. The onus is on the plaintiff to prove their case. So the defendant, in terms of ICBC, has no specific burden on them to disprove the case. Therefore, ICBC does not have the same obligation to obtain reports.

When we talk about the kind of discussion we were having around the limitation on expert reports, this merely is going to favour the defendant in the sense that the limitation on expert reports makes it more diffi- cult for the plaintiff to bring about its case for full recov- ery. Again, does the Attorney General not see this unlevel playing field that’s being created by this limitation? [3:05 p.m.] Hon. D. Eby: It’s correct to say that, in our justice sys- tem, the plaintiff is required to prove their case. This doesn’t change that. The rule applies to both sides.

It’s important to note that if ICBC, as defendant, unreas- onably withheld consent to additional witnesses, they would be subject to costs of the application that the plaintiff would have to make to add additional expert wit- nesses. So there is a consequence for conduct by the defendant that would prevent the plaintiff from presenting Tuesday, July 7, 2020 British Columbia Debates 11885

their case appropriately, because the court will allow the witness, and the costs of the application will be awarded against ICBC. M. Lee: Well, I think it still gets to the concern around the position of ICBC and the benefit that is actually going to accrue to ICBC in terms of putting more handcuffs around plaintiffs in terms of their ability to bring forward expert reports. I know that we had also discussed, in terms of the dis- bursement cap…. The Attorney General had previously indicated, in response to a question I had raised, that there would be special costs available.

If ICBC, say, drives up the costs of litigation, special costs would be available for the court to sanction that conduct and to increase the amounts recoverable to the party that’s been aggrieved by ICBC’s bad conduct. I’ d ask the Attorney General, given that he has referred to that possibility over the last number of years, is he aware of any instances where the court has indeed awarded spe- cial costs involving an ICBC personal injury matter? Hon. D. Eby: It has happened. It’s certainly rare. I will note that special costs are not included in the disburse- ment limits.

Y ou know, I think one of the reasons why it’s rare, despite the member’s assertions here in this place…. ICBC does settle most injury claims out of court. I just want to give him a few statistics about what happens when things do go to court. Of the 166 trial decisions received by February 2020 for trials held in the year 2019, the judgments were for amounts less than the last offer made by plaintiff counsel 55 percent of the time — that is, the judge awarded less than the last settlement offer made by a plaintiff counsel 55 percent of the time, so more than half of the time.

When you do the math, if ICBC had, instead of going to trial, agreed to the last offer made by a plaintiff counsel in each of those cases, the result would have been an additional cost of $26.5 million. When you’re successful in 55 percent of the cases that go to court at getting an award that’s less than the last offer made by a plaintiff counsel, I don’t think it’s fair to say that ICBC is providing unreasonable settlements, forcing cases to court when they’re not merited. The numbers in that case would be that ICBC is regularly losing trials. That’s not the case. They’re winning more than half.

They saved ratepayers $26.5 million by taking those 166 matters to court. [3:10 p.m.] There’s really no merit to the suggestion that ICBC’s set- tlement approach is inappropriate or that it’s increasing costs. Just the opposite. I hope that provides the member with some context. M. Lee: I believe that the Attorney General is com- menting and responding to a point that I made much earlier in this committee process. I’m happy to further engage with the Attorney General on that topic.

But let me just first say that in terms of special costs, the mem- ber had indicated before that if there was a concern regarding items that would be excluded from the 5 per- cent, there would be the ability of the court to award special costs. But I understand from the Attorney Gen- eral’s response that it very rarely happens. In fact, when I look at the review of case decisions, there’s actually been only one in the last four years that awarded special costs in an ICBC claim decision.

It’s a very high bar where the judge, in effect, in that case, found that ICBC disregarded disclosure rules, where they failed to disclose evidence in respect of a jury trial and they expli- citly disobeyed the court order from the Supreme Court of British Columbia. It’s basically egregious conduct. That’s a very high bar. So between special costs and this 5 percent disbursement limit, there is a big gap. In terms of settlement offers, I just make a couple of points in response. I do not have the same level of data that the Attorney General has, of course.

But in response to my concern, he is citing data, clearly, that is coming from ICBC. Of course, that would stand to reason. He’s also the minister responsible for ICBC. He has access to all the data. And we’re talking about data coming from the defendant’s side. How else would they know the amounts that plaintiff ’s counsel offered to settle at versus the amount that was ultimately adjudicated by the courts? There is a flip side to that conversation, which is this concern about low settlement offers with a change in ICBC litigation strategy, which was evident, as I understand, through the courts in early 2019.

And of course, that lit- igation strategy has led to further delays in the courts — new trial dates having to be found when settlements were withdrawn and replaced with lower amounts. Systematic- ally, this was being done. We will still see many of those decisions and those claims to be resolved, as they’re currently still back- logged in the courts, pre-COVID, during COVID and now after COVID — at least in terms of the restart, when I say after.

But I do think that the Attorney General’s response on settlements merely underlines my concern, again, that repeatedly, through the course of this com- mittee stage debate on this bill, the focus has been on, first, a hope versus an expectation of cost savings for ICBC; secondly, on ICBC’s insurance rates; and thirdly, on ICBC’s financial status. [3:15 p.m.] Where do I hear the discussion about the rights of Brit- ish Columbians? This is the Evidence Amendment Act, not the ICBC recovery act.

Every single product reform that this Attorney General has brought forward has stepped on the rights of injured British Columbians in so many different ways. That has been the concern. The discussion that I was raising with the Attorney Gen- eral was to understand the purpose of this bill. Clearly, 11886 British Columbia Debates Tuesday, July 7, 2020

again, in that May of 2019 report from ICBC — the most recent report, as I understand — there is an expectation of cost savings from this implementation of this bill. So I think that the response of the Attorney General really just continues to demonstrate the focus of what truly is at stake here in this bill and the concern, again, that I have around the limitations on the rights of British Columbians that this bill represents. I turn to further aspects of the bill relating to other expert limits in Canadian jurisdictions.

We had had a dis- cussion relating to the fact that, in response, the Attorney General had said that other provinces have limits on expert reports. I acknowledge that. I acknowledge the importance of sound administration of justice in our province to be dealt with in a fair and efficient manner. I certainly would support that. But when we’re talking about a bill that, again, overreaches in this situation, that dips into and suppresses the ability of injured British Columbi- ans to access courts, to access the pursuit of full compens- ation, that’s where my concern lies.

When we look at the Ontario equivalent, we under- stand that the Evidence Act limits reports to three, unless the court permits additional reports as being appropriate, and that, in looking at this Evidence Act, it is up to the ability of the court to determine whether more expert reports should be obtained. Under that legislation in Ontario, is there a similar level of restric- tion on the court’s discretion? [3:20 p.m.] Hon. D. Eby: The member’s right. There are some dif- ferences between the bill that’s in front of the House and the existing limits in Ontario for some specific reasons.

One is that in Ontario, the limit is for all civil litigation. This is exclusively for Motor Vehicle Act litigation in the province. As a subset of litigation, the test speaks to factors that we would hope the court would consider in deciding whether to allow additional experts or not. More importantly, in November 2007, the former asso- ciate chief justice in Ontario, the Hon. Coulter Osborne, issued a civil justice reform project report for that province that pointed out that the limit in Ontario was not working.

So rather than implement a limit here that replicates the experience in Ontario and potentially the outcome, the hope was to take Ontario’s experience, learn from it and provide a more specific test for the court to consider in allowing additional expert reports. M. Lee: Thank you to the Attorney General for that response. I’ll come back to another point that was raised in that response separately.

But just to complete the picture and the review, if we look at other jurisdictions in Canada, other Canadian provinces like Manitoba, New Brunswick, Saskatchewan, Alberta and Quebec, there are, in those provinces at least, also limits on the number of expert reports. Are there any of these jurisdictions that impose the level of restriction on the court’s discretion that is imposed in this bill? Hon. D. Eby: The member chooses Manitoba and Saskatchewan, which is interesting because, of course, they have public insurers. They’ve also transitioned to no-fault.

My preferred name for the system that we’re transitioning to is enhanced care, because fault still matters under that system that we’re proposing. But they do not have this issue, because they do not have motor vehicle claims going to the court system at all in those provinces. For other provinces, certainly, they may have taken dif- ferent approaches. I’m not aware of a test that is similar to what we’re putting forward here.

But this is, without ques- tion, a made-in-B.C. solution to a problem that we have in British Columbia. [3:25 p.m.] The hope is that, with this test, we can ask the court to direct the court’s attention to the specific considerations of why this limit should be in place. The bill reflects not just my opinion. Many far more thoughtful people who really delve into issues of civil litigation in the common- law world have looked at the issue of experts and adversarial experts.

It is their opinion, which I adopt, that additional experts often have the effect of increasing the complexity and cost of a proceeding without bringing suf- ficient benefit for the complexity and cost that they bring. By putting this specifically into the test…. Is this evid- ence already in front of the court from another expert? Do you really need a second expert to say the same thing to buttress the first expert? It seems like a reasonable thing to ask the court to turn their minds to.

And then, can you make sure, before you allow another expert into the courtroom, that you’re not increasing costs and complex- ity without bringing a proportionate benefit to the pro- ceeding — also a reasonable thing, I think, to ask the court to consider. The member talks about a dramatic…. I don’t want to misstate. He talks about a significant restriction on the dis- cretion of the court. I don’t think so.

This is at the judge’s discretion to determine whether the cost and complexity that is brought by an additional expert is worth it, wheth- er the evidence is already addressed by another expert and there’s no need for a second expert on the same point. It is not a significant restriction on the discretion. But it does ask the court, it asks the judge, to turn the judge’s mind to the very specific issue of why this proposed lim- it is there and to consider that before allowing additional expert reports. M.

Lee: I appreciate the effort of the Attorney General to walk back through various points that we’ve been dis- cussing in response. The point that I’m first making here, though, in talking about other jurisdictions, is that even when you look at Manitoba and Saskatchewan under their Tuesday, July 7, 2020 British Columbia Debates 11887

Evidence Act, they have this restriction, whether it’s needed or not. That’s in the act. What I am demonstrating through this questioning is that none of those jurisdictions has this same test, the same threshold around the exercise of the court’s juris- diction, which means that this made-in-British-Columbia solution, just like the imposition of a cap on disbursements recovery, is specific to B.C. Here in British Columbia…. Motor vehicle accidents happen all over this country, regrettably, for different reas- ons.

It’s not specific to British Columbia, yet British Col- umbia brings forward a made-in-B.C. solution, one that restricts the exercise of discretion by the courts and imposes this disbursement cap. That’s why I think that it’s important for us to raise these questions about this bill. Coming back to a topic which the Attorney General indicated in terms of the Ontario legislation covering all civil litigation and not just motor vehicles….

Again, we’ve talked throughout this committee process about the importance of the role of the Attorney General, the proper and fair and sound administration of justice in our province. Why is it that with the consideration of esteemed experts in the legal field, as cited by the Attorney Gener- al over the last 15 years, the reform to the Evidence Act is only specific to motor vehicles, motor vehicle claims and disputes? What is it exactly about motor vehicle accidents that’s different from other civil litigation claims in this province?

If the benefit of this legislation is so great, as the Attorney General indicates, why is it that this bill only focuses on motor vehicle disputes? Ontario doesn’t. B.C. does. [3:30 p.m.] What’s the difference? Well, as I’ve indicated through- out, we don’t have in Ontario, I don’t believe, when that was brought in, an Evidence Act change by an Attorney General who is also the minister responsible for motor vehicle insurance. That’s the difference here. [S.

Gibson in the chair.] When we look at the concerns around the dual roles that this Attorney General carries, it’s clearly evident in this bill and clearly evident in terms of how this is presen- ted to this House. When we look at other common law jur- isdictions, which were referred to previously in commit- tee, there are other limitations, similar in some respects, in Australia and the United Kingdom. But for example, in England and Wales, there is no hard limit. The limitations that are being placed here in British Columbia are far more stringent than in other jurisdictions.

When we look at the regulation-making power under

section 12.1(9) of this act, they permit, as we have talked about, regulations that would come forward to limit the amount of money an injured person can recover per expert report, limiting the amount that can be recovered as a percentage of the total amount of a settlement or court judgment and limiting the number of experts or the number of reports that can be used in court. We’ve heard discussion and references to those limits that will be set by regulation. Can the Attorney General confirm the further process which his ministry will utilize to determine those limits? Hon. D.

Eby: The member asks in several different ways: why does this only apply to motor vehicle litigation? Isn’t this evidence of profound conflict of interest that I’m in as Attorney General and minister responsible for ICBC? No, it’s not. Y ou’ve got to flip to

section 2 in the bill, where it expands it to all personal injury actions. I do think that if you pulled someone in off the street and I had to explain to them why we were starting with personal injury associated with motor vehicle collisions, I think they’ d get that. I think they would have read in the Province newspaper about someone receiving a court award that was eaten up entirely by disbursements from their lawyer’s office. I think they would have heard about ICBC medical experts who don’t see patients, who have an office over an airport hangar, in theGlobe and Mail.

I think they would shake their heads at the excesses of the system, and they would say: “Great. I’m glad you’re starting with motor vehicle collisions. ” Only the critic could stand in this place and say: “Why are you starting with motor vehicle…?” Seriously, why are we starting with motor vehicle claims? What? Where has this member been?

How many headlines does he need about the problems with the car accident litigation tort system in our province for him to understand why we would start with motor vehicle claims? [3:35 p.m.] Putting aside the fact that his core assertion — that this is only about motor vehicle claims — is patently incor- rect….

Section 2 expands it to all personal injury, brought into force by regulation. Putting that aside, I don’t under- stand how you could be living in this province, under- standing how people feel about ICBC and our current car insurance system, the court system and how it’s interact- ing in this way;

part 7 benefits that leave people who are in single-car collisions with a moose, living in poverty because there’s no one to sue…. How can you look at all these things and say: “Wow. It must be a conflict of interest — why the member is starting with motor vehicle claims in courts with this reform. ” We’ll go out in front of the Legislature. We’ll pull in some member of the public, and we’ll say: “Y ou know, we can start anywhere in terms of this reform around expert reports.

I think we should start with this area that’s been on the front page of the Globe and Mail, from page of the Vancouver Province around excesses with experts, or do you think we should start in some other area?” I think the member would have his answer about why we’re starting there. It’s not conflict of interest. It is just 11888 British Columbia Debates Tuesday, July 7, 2020

the excesses and the problems with the current system that must be addressed — period. M. Lee: Well, I believe we can continue to engage on that topic, and perhaps we will. But first, let me just ask if the Attorney General could please answer my question. Hon. D. Eby: Y eah, the member got me so excited with his first set of questions in his question that I missed the last question, which is: how will this number, ultimately, be set? It’ll be based on the information that we’re able to gather about the actual value of disbursements paid out in claims, as well as engagements with stakeholders. M.

Lee: When the Attorney General talks about engage- ment with stakeholders, what will that process look like? Hon. D. Eby: Typically, it involves asking stakeholders to provide feedback on the proposal and then receiving that feedback and incorporating it into the policy analysis.

It can take any number of forms, but I imagine that the engagements on this will be quite discrete and limited to legal organizations like Trial Lawyers, Canadian Bar Asso- ciation, Law Society, as well as, of course, the Chief Justice of the Supreme Court, the Chief Judge of the Provincial Court and the Chief Justice of the Court of Appeal. M. Lee: Prior to the introduction of this bill, what stake- holder consultations have been held, including with those groups that the Attorney General has referred to? Hon. D.

Eby: I’ve had a number of conversations with Law Society, Canadian Bar Association and Trial Lawyers. We meet our obligations with respect to engagement, where appropriate, with the chief justices and the chief judge. I can advise the member that the preliminary conver- sations that I had with these stakeholders is what has led us to revisit those numbers. In addition, we have also had an engagement with an organization that represents a sig- nificant number of medical experts, and that has provided some feedback to us as well. They also contributed to our decision to revisit these numbers. M.

Lee: I think it’s important to understand the nature of stakeholder consultation, particularly as it’s conducted in this context. That is reform provided by the Attorney General and putting in place legislative frameworks that will then set, by way of regulation, the specifics of that legislation. The Attorney General has just outlined what that stakeholder process will look like. [3:40 p.m.] Certainly those who are stakeholders….

Those who are in the brain injury and concussion groups — organiza- tions, not-for-profits around this province which are sup- portive of those who have suffered serious concussions and brain injuries — had understood, prior to the minor injury bill, through statements made by the Attorney Gen- eral that there wouldn’t be an inclusion of brain injury and concussion in the minor injury definition.

When the Attorney General talks about stakeholder consultation, what assurances do we have here in this House, given the indications that he’s provided on this bill, that the amount that’s been identified for the limit on dis- bursements, or the amount for each expert report, won’t be lower than 5 percent and $3,000? Hon. D. Eby: Well, actually, it was engagement with stakeholders that led us to include concussion in the minor injury definition and to do it in the way that we did, which was a unique treatment compared with other minor injury tests and psychological injuries that were similar.

But if your concussion resolves within 16 weeks, allowing you to return to the activities of daily living, then it’s con- sidered a minor injury. I don’t know. It’s possible, I guess, that stakeholders who were talking about brain injury around the table expected that we would treat concussion that resolved within 16 weeks as a major injury. I don’t at all for one second pre- tend that it’s not a huge impact on someone’s life to have a concussion that limits their daily activities for 16 weeks. That obviously would be huge for a parent, for someone who is working.

However, for the court process associated with that, for the pain and suffering award associated with that, the limit was set at 16 weeks as a minor injury. The terminology…. If I could do it again, I would change it, because I don’t think the experience of a 16-week concussion is minor for the person who suffers it. I don’t know what term I would use preferably, but I think it is an unfair diminishment of the experience of the person who suffers it.

But what is meant by minor injury is that the injury is relatively more minor to other types of injury, and, therefore, the process and awards associ- ated with it should be relatively more proportionate — in other words, should be faster and cheaper to resolve. That was the principle in the minor injury changes that were brought forward under the previous bill. The member feels that that was a great betrayal of stake- holders somehow. It’s possible, I guess. I do accept that the terminology that was used was not sufficiently respectful of the impact that a head injury like that can have on a person’s life.

I definitely believe that the lesson that I took from that is one that will inform other work we do. I don’t believe that it was a betrayal of the people that I said we would not be including brain injuries as minor injuries, but there you go. So we might have to agree to disagree on that one. Regardless, I can tell the member that 5 percent and $3,000 is the floor of what we are currently considering. If there are any changes, it would be to increase the value of the recoverable expert report beyond $3,000 or the per- centage of the claim beyond 5 percent. Tuesday, July 7, 2020 British Columbia Debates 11889

[3:45 p.m.] We will be engaging with stakeholders. Because we engage with stakeholders does not mean whatever number they put forward is the one that is adopted, ultimately, by government. I will not provide any assurance like that. What I can assure stakeholders that we engage with is that their submissions will be taken very seriously, because our goal here is a fair process that respects that people do need to present expert witnesses, that they will need to recover disbursements to do that to prove their case. However, we need to restrain the excesses, so that will be the goal of the engagement.

It will not be a large-scale, online engagement-type process but a targeted engage- ment to people who work in this area. M. Lee: I think the concern around the amount of details that need to be dealt with by way of regulation — as we will see in the Bill 11 debate to come and as we’ve seen in the minor injury bill and currently in this Bill 9 — all goes back to the same consideration as to how that level of stakeholder consultation is done and what representations and understandings are made. I did not use the word “betrayal. ” But it’s not just my viewpoint.

When I talk to other stakeholders who were involved in those consultations, they had a different understanding and assurance from the Attorney General that it would not be inclusive of brain injury and concus- sion. Now there is certainly detail in that, in terms of the 16-week period. In terms of a class of injury, as the Attorney General has admitted here and as he admitted back in the days when we were debating the minor injury bill, if he had to do it all over again, he wouldn’t call it “minor, ” because it isn’t. It captures a great percentage, 80 percent or so, of minor injury claims in this province.

So it does matter, in terms of the definition and what is put in place, after a bill has passed, by way of regulation. It does matter. The details do matter. This is my concern regarding the stakeholder con- sultation aspects. I wanted to come to some remaining points on this sec- tion 1 around the retroactive nature of the application of this bill. As we see in

section 12.1 — in response to some previous questions I had raised at committee level, con- cerns around how those accident victims who are cur- rently in a litigation proceeding or claim proceeding with ICBC — this is a significant change.

When the three-expert rule was ruled unconstitutional, the Attorney General had indicated in our earlier commit- tee process in early March that “well, it shouldn’t have been a huge surprise, because I telegraphed this in several ways that this was our intention to do so, ” and that based on that expectation, that telegraph, claimants ought to have been informed about their legal rights with this cut-off date of February 6, 2020.

Let me ask and give the Attorney General an opportun- ity, again, to explain how and whether he believes that tele- graphing, which is the term he utilized, is fair enough to those British Columbians who have been injured in motor vehicle accidents. [3:50 p.m.] Hon. D. Eby: The goal was to make sure that this rule actually had some effect. If the member is on to

section 3 of the bill, which amends

section 12.2…. In it, there are a couple of deadlines by which you can be exempted from these rules. One is that you can have the expert report, have it be served before February 6, 2020. Now, February 6, 2020, is the date that this was announced, so if you hired an expert, got the report and served it before the day this was announced, there’s no issue. The second way you could exempt yourself is if you’ve got a notice of trial filed and served before February 6, 2020. Y ou’ve got your court date. Y ou’ve filed and served your notice of trial before February 6, 2020. No problem.

That was the date of the announcement, so you’ve already got your trial date. Y ou’re planning. For those folks who didn’t even have a trial date, they hadn’t served the expert report, they are now subject to this new rule. It’s not speculative — that there would be a rush on the registry, for example. If the notice of trial was some later date, there would be a big lineup of people trying to file and serve notice of trial. We saw it with the minor injury legislation. There was a rush on the registry.

The goal was to be fair to the people who had trials com- ing up: they had their trial date set; they were preparing for trial before the rule was announced — and for those people who had actually retained an expert and served the expert report before the date of the announcement. Fol- lowing the date of the announcement, because you have notice of it, you are subject to those new rules and the pro- portionality test that the court will do, in terms of allowing additional expert reports. M.

Lee: Recognizing that the so-called telegraphing occurred after the ruling by the courts that rule 11-8 was unconstitutional, was there any telegraphing at that time about a disbursement cap? [3:55 p.m.] Hon. D. Eby: Y es, I can advise the member that the February 6 announcement also included the proposed dis- bursement limits of 5 percent and $3,000. Also, it may be of interest to the member that there are a significant number of people who would have had trials go ahead during the COVID period. They had notices of trial issued for that period. If you have had any….

The legislation, as proposed here, is if you have had any notice of trial filed and served before February 6, then you are excluded from these rules. It doesn’t matter whether your trial went ahead or not because of COVID or otherwise. As long as there’s been a filed and served notice of claim before February 6. 11890 British Columbia Debates Tuesday, July 7, 2020

M. Lee: Just to look at the other date that is there in terms of trial dates that are set for after October 1, 2020. So there would be injured British Columbians who have been in dispute with ICBC for several years. British Columbians that are working through that process, with severe spinal cord or brain injuries, who have been presumably work- ing within the rules of court that govern their claim and moving forward. But if their trial date is set for after Octo- ber 1, 2020, there is a significant impact on these proposed changes, on those injured British Columbians.

What assessment has the Attorney General Ministry done on the number of claimants that would be affected by this rule change? First, in respect of motor vehicle claims, in which ICBC is the defendant. Secondly, in terms of per- sonal injury claims. Hon. D. Eby: That October date is nine months before trial. The goal was to try to capture those folks who were preparing for a trial date that was reasonably imminent within the next nine months — with their expert reports — to exclude them from this rule process. [4:00 p.m.] We don’t have the numbers of matters that would be captured here.

It’s important to note that those matters that were adjourned because of COVID are not affected by this. If they qualified before and they were adjourned, they still qualify now. M. Lee: If we have a British Columbian with a brain injury who has had an assessment scheduled with an expert in March or April of this year, despite following the rules in again moving their claim through the pro- cess, they’re now subject to a whole new set of rules, as we’ve been talking about here. How is that fair to that individual? Hon. D.

Eby: If a party necessarily and properly incurred the expense before the date of the announce- ment, February 6, 2020, for reports from experts, the reg- ulation may not limit the disbursements payable to that party. I’ll refer the member to sub 12.2(3)(

a) for that. If it was incurred after it was announced, the member is right. After the announcement, those expenses would be subject to the new rules. But then it had been announced, so it is fair. M. Lee: I think I just heard the Attorney General say that if it had been announced, it’s fair. But we’re talking about individuals who’ve been in the process of their claim, individuals who may have been fairly injured some years ago, because we know that many of these claims take a number of years to get through the process.

How is that fair to an individual, who has been already going down that road to seek recovery, for this rule change to occur? Hon. D. Eby: Again, for the expenses incurred before the announcement, a regulation under sub 12.1(9) must not limit the disbursements payable. For expenses incurred after the announcement, they’re subject to the new rules and, of course, also the tests that we’ve spent some time going over — where the court may allow addi- tional expert reports, subject to the proportionality test that we set out there. I’m not sure I have anything else to add to that.

Section 1 as amended approved. On

section 2. [4:05 p.m.] M. Lee: In terms of

section 2, as the Attorney General pointed out in a fairly passionate response to a distinction I was drawing, let me just first ask: from a drafting point of view, how was this

section drafted in this manner? Hon. D. Eby: The drafting approach here is that the sec- tion essentially acts as if 12.1 is already law and amends it to expand application beyond motor vehicle accidents alone to all personal injury proceedings. The effect of it is that when a regulation is made to bring this

section into force, it will expand the application of the rules and the test that we’ve been talking about beyond simple motor vehicle accidents to all personal injury claims. That is the effect of this section. The timing of implementation of this will depend very much on how 12.1, unamended, performs to address some of the concerns that I’ve articulated about how expert reports are used in court currently and where there’s an opportunity for improving efficiency of court proceedings. If it seems to be going well and addressing the issue, then we would broaden it.

And if it doesn’t seem to be address- ing the issue, then we would need to be revisiting it, not broadening it. M. Lee: Thank you to the Attorney General for confirm- ing what is a staged approach — first with the changes to be brought in place under

section 1 of this bill and then, subsequently at a later date, a broadening to include all personal injury. At this time, what assessment on impact, if any, has been made on the broadening of this restriction on expert reports to personal injuries? Hon. D. Eby: The assessment is going to wait for the implementation of phase 1 to see how it is performing, as I said in the first response. What is the reality on the ground, in terms of what it looks like after implementation?

If it is working well and it seems like it’s achieving the goals that I know many people share around how experts are used in our court system, then we would look at expanding it. That would be the analysis: how is it actually performing in the court system? Until it’s actually implemented, we don’t have that information. Tuesday, July 7, 2020 British Columbia Debates 11891

Hon. Chair, if I might ask for just a two-minute recess, if my critic is agreeable. The Chair: We’ll take a recess and allow a break. We’ll be back in a few minutes. The committee recessed from 4:09 p.m. to 4:13 p.m. [S. Gibson in the chair.] M. Lee: I’m resuming the discussion about

section 2. As the Attorney General just indicated, there will be a staged approach here in reviewing the implementation of the rule changes under

section 12.1, as they pertain to motor vehicle injuries, before extending it and broadening it to personal injuries, more broadly. The point that I was making earlier…. [4:15 p.m.] Perhaps I can ask one other question before making that point. Is the area of change to the Evidence Amendment Act…? Were there any other areas considered — in terms of personal injury, motor vehicle or any other areas of the law — for claims of this nature, for a rule change under the Evidence Amendment Act? Hon. D.

Eby: The reason for the focus on personal injury was that it seemed that the potential for a similar rule to apply across personal injury proceedings was more amenable to the tort litigation approach, generally — that cases are broadly similar to each other and that consider- ations are broadly similar — compared, say, to a contract dispute of some kind or to construction litigation. With that said, there is active consideration around civil justice reforms. Coming out of, in particular…. In front of mind is the COVID backlog.

We have a couple of different groups that are active, providing advice to government and weekly engagements, in some cases, and monthly engage- ments, in others, with the chiefs of the various courts as well as with the various legal organizations — the Cana- dian Bar Association, the trial lawyers and the Law Society — around potential reforms to help resolve the backlog by improving efficiencies in the court system. That is a very active discussion that’s underway. I can advise the member that there are active policy reforms being considered but at far too premature a stage to announce.

For obvious reasons, there’s a great deal of urgency around doing what we can to keep matters out of court, if we can, through early resolution, to narrow issues, once matters do get to court, so that court time is only used for those areas of true dispute and to make sure that people are able to access courts in various ways if they have com- promised immune systems or are otherwise challenged to attend personally in court. For example, they’re in custody. There’s a lot of work happening on that side. M.

Lee: I certainly acknowledge the significant amount of justice reform policy work that continues to go on, including the advancement of how the justice system can operate more effectively remotely and through the use of technology, even during this COVID-19 time. Certainly, in terms of other areas, I look forward to having discus- sions about further reform. [4:20 p.m.] I would suggest, though, that the conversation we’ve been having here…. The reason why, of course, I had focused on the changes in respect to vehicle injury pro- ceedings is, of course, because of two reasons.

One is the way that this bill has been characterized by the Attorney General and the way it has been positioned in the course of other reforms in order to address the challenges with ICBC that the Attorney General is dealing with. This has been referenced as a benefit, as a way to reduce costs. We went over the ICBC communications around this. This has been the way this bill has been framed. Regardless of the need identified in various media pieces, there are certainly other references to the need for the continued access to our justice system in a fair, accessible way.

The second reason, of course, is the bill itself. As we just reviewed in the conversation around

section 1 of the bill, this is what is changing. Government can always contin- ue to expand the scope, as they did with the civil resolu- tion tribunal put in place by the previous government — expanded the jurisdiction of that tribunal in many ways that, perhaps, it wasn’t designed to do in the first place. So there continues to be challenge in that. But in this case, we’re being asked to approve a bill that deals first with motor vehicle accidents. This is what this bill focus is.

So when I made the earlier points, again, about why it is the consideration around the changes to our Evidence Act, and why the focus here…. I get the fact that ICBC is the chief litigant of this province. It is a significant cost driver for drivers of all backgrounds, all income levels — students, those who rely on driving for their income, to get to their jobs, to get to their schooling.

We know how important this is, but also how important this is when you get into an accident, when your life and your ability to fully function in the way that you wanted to do has been taken away because of a driver who was care- less, negligent. This is the reason why this matters. Again, my concern for the way this bill has been brought forward and the decision to focus on vehicle injury proceedings first is not so much that there isn’t an understanding, that there’s significant litigation and volume around this, and cost.

But it’s a recognition that we have the Attorney General of this province changing the rules midstream on a retroactive basis for claimants that have been at this for many years. This is the concern. I’ve been going through this bill indicating areas of con- cern that structurally still exist — not just with this bill. That concern will continue in terms of the confidence that British Columbians would have in the ways that this gov- 11892 British Columbia Debates Tuesday, July 7, 2020

ernment is proceeding, changing the way in which British Columbians can bring forward their claims, the rules of court, in the manner which they’re doing here, in a way that is a made-in-B.C. solution that is far more restrictive than any other jurisdiction in Canada. [4:25 p.m.] With that, I have and continue to have significant con- cerns about this bill. I’m not in support of it. I would encourage all members of this House to con- sider what’s at stake here and to consider what is occurring here, because this Attorney General is in conflict. Whether we want to debate and continue to debate that conflict….

I would say from a perception point of view, all British Col- umbians need to have confidence in the due administra- tion of our justice system. It is a real concern when we have an Attorney General who is changing those rules to bene- fit ICBC, as he’s the minister responsible for that too. Hon. D. Eby: Thank you to the member for his closing remarks. I mean, I’m not surprised the member is going to vote against this.

The member voted against Bill 11 too, on second reading, with his colleagues — the same bill that’s going to provide 20 percent savings to British Columbi- ans on their car insurance and some of the best benefits in Canada. Okay. The member is opposed to these things. Difficult to know what the member stands for.

He says he stands for low-income British Columbians, but I want to encourage him to seriously question whose side he is on when he stands in this place and votes against reforms aimed at curbing what has been widely commen- ted on by legal experts of various stripes — not just in Brit- ish Columbia; across Canada, the United Kingdom and Australia — as an excess that needs to be dealt with in the civil litigation system. As he stands up and votes against reform in this area where it’s badly needed, here is a story about a low-income British Columbian under this current system.

ICBC paid out $127,362.09 for an accident claim. The amount that the person walked away with was $22,874. What happened to the rest of the money? Expert reports — nine of them in all — from doctors, psychologists and rehab consultants cost more than $28,000. One doc

Document details

Collection	British Columbia — Debates (Hansard)
Citation	20200707pm-Hansard-n335
Type	hansard
Volume / chapter	20200707pm Hansard n335
Language	en
Format	pdf
Source	PROVINCIAL
Identifier	fcbe83f43f95512f1a9e229f85a64d43f8e8880e

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