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Government defends ICBC cap in response to lawsuit filed by trial lawyers


Damaged vehicles are seen at ICBC’s Lower Mainland Salvage Yard.


DARRYL DYCK / THE CANADIAN PRESS

The B.C. government is defending its decision to impose a cap on ICBC claims for minor injuries, in a response to a lawsuit filed by the Trial Lawyers Association of B.C.

In April, the association sued in B.C. Supreme Court, saying the $5,500 cap on minor injury claims and the establishment of a civil resolution tribunal to adjudicate certain claims were unconstitutional and should be struck down.

The NDP government had passed the legislation enacting the changes last year after declaring that ICBC, which has reported losses of $2.2 billion in the past two years, was in a financial crisis and measures were needed to protect the interests of B.C. drivers and keep premiums down.

The association’s lawsuit argues that the new regulations have the potential to discriminate against people with brain injuries, psychiatric injuries and chronic pain by treating those injuries differently than other injuries.

It said that the scheme would have a “disproportionately adverse effect” upon women, the elderly and persons with pre-existing injuries or other disabilities.

The establishment of the tribunal would create “significant barriers” to access to justice before the superior courts for many claimants, said the suit.

But a response filed in court by the Attorney General’s Ministry emphasized that the substantial increases in ICBC claims costs had jeopardized the Crown corporation’s long-term sustainability and its ability to keep basic insurance rates affordable for drivers.

The ministry denied that the cap disproportionately adversely affects women, the elderly or persons with pre-existing conditions. “The defendants further deny that the minor injury definition includes conditions that have been subject to prejudice and stereotyping, historically or at all.”

Any distinction that the cap may draw among accident claimants is based on severity of injury, not mental or physical disability, says the ministry’s response.

The response defended the establishment of the tribunal, saying that its mandate was to resolve claims within its jurisdiction in a manner that is “accessible, speedy, economical, informal and flexible.”

The tribunal does not create a barrier to access to justice in the superior courts, the ministry said.

“There is no constitutional or fundamental right to have vehicle accident claims determined by a superior court,” it said. “Historically and at Confederation, the superior courts exercised concurrent jurisdiction with inferior courts and tribunals for personal injury claims.

“The minor injury amendments do not impair the core jurisdiction of the superior courts, nor do they otherwise cause undue hardship thereby impeding access to justice for accident claimants to whom they apply.”

No date has been set for a trial.

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