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Editorial: No-fault needs to be fair to accident victims

Financial awards are determined by ICBC, the same agency that must pay those sums. A clearer conflict of interest could not be found.
B.C. Premier David Eby speaks during a news conference in Vancouver on June 13, 2024. THE CANADIAN PRESS/Darryl Dyck

It’s become increasingly clear that B.C.’s no-fault insurance scheme is fundamentally unfair.

Before the program was introduced in 2021, Premier David Eby likened ICBC’s finances to a “dumpster fire.” No-fault, or “Enhanced Care” as the government chose to call it, was intended to bring an end of the company’s chronic deficits and ever-growing customer premiums.

And in that respect, the scheme has worked as planned. By taking lawyers largely out of the equation, no-fault saves ICBC the 30 per cent of injury awards that lawyers often claim.

Before the scheme was introduced, ICBC ran deficits in the $1.3 billion range. Last year the company recorded a profit of $1.5 billion.

So yes, no-fault does save money.

Unfortunately, as accident victims are coming forward to show, the structure of the program is deeply flawed.

In essence, financial awards made under the program are determined by ICBC, the same agency that must pay those sums. A clearer conflict of interest could not be found.

Moreover accident victims with life-long injuries, like Victoria lawyer Tim Schober who is now a quadriplegic, find they must submit endless receipts to ICBC adjusters for every item of care they receive.

Schober’s wife, who quit her job to care for her husband, receives no compensation for her lost income.

Schober and the Trial Lawyers Association of B.C. have filed a lawsuit in B.C. Supreme Court, alleging that no-fault contravenes section 15 of the Charter, which guarantees equality rights. The matter is still before the court.

A return to the extended litigation that often preceded no-fault should not be an option. Just last week an accident case that dragged through the courts for 13 years was finally settled. Changes are clearly needed.

The only choice accident victims have to dispute their award is to appeal to the B.C. Civil Resolution Tribunal. However the maximum settlement the tribunal can award is just $6,850, a limit set by the government. That goes nowhere in dealing with serious injuries.

There is however a better option.

After the tainted blood scandal of the 1980s, in which thousands of blood ­recipients contracted serious ­ailments, hepatitis C, HIV and hemophilia among them, a fund was set up by Ottawa and the ­provinces to offer compensation.

More than $1 billion was made available, and while much of it has now been distributed, awards are still being made to patients and their families.

The fund itself is administered by an independent third party, Crawford Class Actions Services.

Because the company has no vested interests at stake and operates at arm’s length from government, it offers a fair means of dispersal.

Each of the provinces also employs a public trustee to assist claimants.

Either of these mechanisms could be adapted to give accident victims the ­settlements they deserve.

Eby has said any gaps in coverage will be reviewed after the scheme reaches the five-year mark. But that means whatever failures there are won’t be addressed until 2026.

For victims like Tim Schober that’s cold comfort, and of course there is no guarantee that any significant changes will be made, even then.

It comes down in the end to who you trust. Eby and his colleagues consider that ICBC is best suited to delivering equitable and just settlements.

They instinctively believe that a ­government-controlled agency is the ­correct way to go.

However, many accident victims, particularly those who have suffered life-altering injuries, are likely to prefer a more arm’s-length agency. And in this, we believe, they are right.

There is no escaping the fact that ICBC’s dominant self-interest stands in the way of any fair-minded solution.

That must change.

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