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Eby’s bumpy, make-it-up-as-you-go-along ride on challenging ICBC file

VICTORIA — Portrait of a cabinet minister making things up as he goes along:

Feb. 7: David Eby, wearing his cabinet minister for ICBC hat, reacts to news the government-owned auto insurance company missed its financial target for the first full year under the NDP.

ICBC forecast a loss of $684 million. Instead it will lose $1.18 billion, not much less than the $1.296 billon it lost in the financial year shared with the departed B.C. Liberal government.

Not to worry says Eby, still wedded to the belief that ICBC can be put on a break-even footing by 2020.

He’s already consulting with “stakeholders” on a new way to rein in legal and court costs: “The big one we’re concerned about are the cost of expert reports.”

Feb. 11: Eby, now wearing his attorney-general’s hat, signs a cabinet order rewriting the rules for court cases involving motor vehicle accident claims.

“We’re reforming the Supreme Court civil rules to limit the number of experts and expert reports allowed in certain cases,” he tells reporters.

The new limits are expected to deliver “in excess of $400 million” in savings for ICBC, starting that very day, which is when the new rules take effect.

Supreme Court rules are supposed to be vetted by a committee of lawyers and judges, jointly appointed by Chief Justice Christopher Hinkson and the attorney-general.

How involved was the committee in these changes?

Eby cites “discussions” with “a multi-stakeholder group” and “ministry staff.” But he never says whether these changes were approved in advance by the rules committee or to what extent the committee was even consulted.

Later that day the Trial Lawyers Association comes out and says what Eby won’t say, namely that the attorney-general pushed through the rule changes unilaterally.

“He is doing so despite a protest from the independent rules committee,” reports Ian Mulgrew in The Vancouver Sun.

Feb. 27: It has taken more than two weeks, but the attorney-general finally admits the trial lawyers were correct about the rule changes.

“I would like to clarify the process that was followed in relation to these changes,” reads the statement put out by his office.

He goes on to say the rules committee was “engaged” before the changes were announced. And it did offer “feedback,” which Eby claims to “very much appreciated.”

However: “The rules committee did not recommend these changes and was not asked to approve these changes. These changes were a decision made by government.”

Meaning government in the person of David Eby, an attorney-general who gets to preside over a unilateral rewrite of the court rules to suit the minister for ICBC, who is, of course, one and the same.

And lest there be any doubt on the part of the committee or anyone else, “government will continue its work on additional changes to the rules of court,” says Eby.

March 25: Eby announces via press release that he is pulling back on two provisions in the edict on the use of experts.

The new limits won’t apply to cases scheduled to go to court before the end of this calendar year. Litigants who incurred costs for experts before the Feb. 11 change of rules will be permitted to recover those costs.

All in the name of fairness and avoiding “unintended consequences” according to a followup statement from the ministry of the Attorney-General.

As for the financial consequences for ICBC, the ministry estimates the pullback will knock some $20 million off the projected savings of $400 million.

March 29: Another day, another amendment to the regulations regarding ICBC claims. There’s now more leeway for claimants to recover medical, rehabilitation, disability and other costs, including funeral expenses and death benefits.

“The new (60-day) limit gives people a reasonable amount of time to submit their receipts while ensuring ICBC receives the information it needs to accurately assess the severity of claims, provide additional supports to injured people as needed and better forecast future costs,” says the statement from Eby’s ministry.

This just two days before the new claims and litigation regime takes effect.

April 1: “The key for me is we’ve got to make it to April 1,” said Eby back in February, referring to the date he set last year for the big changeover on ICBC claims.

Those changes, limiting payouts for injuries, steering claims to arbitration and capping costs for ones that go to court, were expected to save $1 billion, even without the added limits on use of experts.

Now the big day is here and the trial lawyers mark the occasion by confirming they will challenge the new regime on constitutional grounds.

All of which recalls something else Eby said back when he was announcing the new limits on the use of experts and predicting savings of $400 million or more.

“The reality is that it will depend very much on the reception of the courts and the approach of lawyers to this,” he said.

“Our hope is that the bench and the bar support the intent of these rules, understand why we’re doing this, and that we do realize these savings.”

Against those hopes, there is Eby’s record, including a lack of consultations, arbitrary rule-making, and changes at the last minute.

Not the approach that most cabinet ministers would choose if they needed co-operation from the bar and bench to make the numbers work.

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