Vaughn Palmer: Eby gets an education on difficulty of cleaning up Liberals' ICBC mess
Credit to Author: Gord Kurenoff| Date: Fri, 22 Nov 2019 01:26:01 +0000
VICTORIA — Attorney general David Eby raised further doubts about his ability to rein in legal costs at ICBC when he abandoned all hope this week of appealing a recent court judgment against the effort.
Eby announced the backdown during a press conference where he began by invoking what he tried to accomplish with his failed effort to cap the use of medical and other experts in auto insurance cases.
“Expensive, excessive expert reports are driving up costs for people who have been injured, both in automobile collisions and otherwise,” the cabinet minister responsible for ICBC told reporters.
“Our goal is to ensure that more of the settlement amount goes into their pockets — a goal that will have benefits for ICBC as well, and, by extension, for ratepayers, who hopefully will not have to pay for as many experts on both sides.”
But Eby’s justification only underscored the magnitude of the defeat on a measure that was supposed to deliver $400 million in savings for ICBC.
Chief Justice Christopher Hinkson of the B.C. Supreme Court overturned Eby’s unilateral effort to impose the cap by rewriting court rules. Now Eby was conceding there was little to gain by an appeal against the Hinkson judgment.
“Our odds of a stay of the effect of this decision while legal arguments are made on appeal, likely all the way to the Supreme Court of Canada, are low. This would prevent us from taking action until years down the road.”
Upon reflection, he also admitted Hinkson had some valid concerns.
“The chief justice has raised a number of considerations in his decision that leave me to believe an alternative approach may be more desirable,” said Eby.
The new approach means no further effort to unilaterally rewrite the court rules. Instead the government will try to establish a less rigid cap on the use of medical experts through amendments to the Evidence Act.
“I’ll be frank,” the attorney general told reporters. “Our relationship with the judiciary and the back and forth around court rules was a not insignificant factor in the decision to go a different route.”
Asked what he meant by “our relationship with the judiciary,” Eby said it was a reference to the “tension” between the priorities of the NDP government versus those of the judges.
“Putting forward a rule that removes discretion from judges is a challenging case to make. And I think that you can see some of the concerns reflected (in the court judgment) about our decision to do that.
“I do believe that there is an important lesson here for us. I will certainly be engaging with the chief justice on the proposed amendments going forward.”
An expensive lesson too, given time and money, wasted in court, plus the impact on ICBC’s bottom line of having to go back to square one.
ICBC is already expected to miss this year’s financial target of coming within $50 million of breaking even. As for the foregone $400 million on the use of medical experts, Eby said it could be booked as a one-time hit on this year’s books.
But he hopes to recover some of the $400 million when those planned changes in the Evidence Act are enacted by the legislature next year.
Then, again, Eby had to admit those might not pass muster with the courts.
Instead of a rigid cap on the number of experts in a given case, the government proposes to allow judges to lift the cap to avoid a miscarriage of justice in exceptional cases.
The chief justice has already raised doubts about judges being put in the position of having to make such calls.
But Eby hopes it will fly: “We believe that by providing some discretion to courts to allow additional adversarial experts, where parties can’t agree on joint experts, should hopefully address that concern. But this will be something that we’ll be engaging with the court on going forward.”
Then there’s the inevitable pushback from the legal profession: “I would say the odds of a legal challenge is 100 per cent,” said Eby.
Even if his fallback plan survives, it won’t likely deliver as much in the way of improvement to ICBC finances.
“Potential savings are likely to be significantly less because there is a lot of uncertainty in other jurisdictions where they have increased judicial discretion. They haven’t seen a significant reduction in the number of experts used,” he said.
ICBC will be taking some time to work out all of the financial implications. “It’s really not up to us,” said Eby, meaning the NDP cabinet. “It’s how much ICBC’s actuaries and the auditing team feel comfortable with appropriately claiming in this fiscal year.”
But that also brought another telling admission.
“This decision has underlined the importance of caution around actuarial projections of savings from amendments to legislation,” he told reporters. “We’re going to be taking a very careful approach to any estimated savings.”
Which is a far cry from the hundreds of millions of dollars in savings he touted when he first launched the drive to rein in the use of medical experts.
Now all he has are doubts — about the courts, the lawyers, the actuaries, and even his own legislation.
The only certainty is that in cleaning up the mess that the Liberals left behind at ICBC, Eby and the New Democrats face a long, hard slog.
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