Ian Mulgrew: Legal community bristling over Eby's legerdemain
Credit to Author: Ian Mulgrew| Date: Thu, 13 Feb 2020 01:41:44 +0000
The Trial Lawyers Association of B.C. feels played by Attorney-General David Eby, considering him more like Machiavelli, the Italian political schemer, than a champion of civil rights and transparent government.
His announcement last week to legislate mandatory no-fault-style auto insurance with no choice or right to optional first-party tort coverage (unlike in Saskatchewan) and no choice as to insurer (unlike in Quebec), left the litigators spitting mad.
My colleague Rob Shaw reported Eby had been “quietly” — a euphemism for “secretly” — working on this radical plan since November 2018, even though it represented a complete flip-flop on an NDP campaign promise.
Instead of telling voters he was changing his mind, three months after deputy ministers began working on no-fault Eby engineered a divisive attack on lawyers with a February 2019 order-in-council that changed court rules to aid ICBC.
The lawyers said in a letter to the NDP minister released Wednesday that after that decree, the Crown corporation “pursued a hostile, unreasonably low settlement offer strategy with injured claimants causing a massive increase in legal and court costs, unnecessary trials, and unprecedented delays and adjournments.”
A record 140 adjournments occurred last year, owing mainly to the ICBC settlement strategy compounded by a shortage of judicial appointments, Trial Lawyers Association president John Rice added.
The predictable outcry over the unilateral changes was swift.
Yet, while the courts, lawyers and the rest of the province argued about the controversial amendments, it was all seemingly sleight of hand.
Behind the scenes, according to Shaw, Eby was engaged in an entirely different process — rolling down the road to no-fault with nary a whisper.
“Last March,” Shaw reported, “Eby heard the CEOs of the public auto insurers in Manitoba and Saskatchewan were visiting B.C. for an industry event. He asked to meet them.”
David Eby gestures during a press conference in 2019.
While lawyers were banging their head against a wall trying to discuss options to fix ICBC and the legal system, Eby was focused on no-fault.
By mid-year, the frustrated association, representing most of the personal injury bar, launched a court challenge.
At the same time, the lawyers complained loudly that ICBC’s litigation strategy was driving up legal costs and pushing more cases to trial — exacerbating the problem of crowded dockets and leaving claimants waiting months or years to collect.
“How can the public trust ICBC to be fair with no-fault when at the very same time ICBC is needlessly bullying people into trials that should settle for fair damages?” Rice asked. “These needless trials are a complete waste of money.”
Throughout, Eby remained silent … sorry … “quiet” about no-fault.
B.C. Supreme Court Chief Justice Christopher Hinkson was probably wasting his time deciding Eby’s changes were unconstitutional — the attorney-general was well along the road to his conversion to no-fault.
After that October defeat, when asked whether he would appeal, Eby replied:
“We have 30 days to make a decision about (an appeal). It’s a very significant decision for us. It amounts to about a $400 million one-time hit to the bottom line for government.”
He continued to toe the party line: “We have had some setbacks, there’s no question, but there have been some really positive changes as well. ICBC’s finances are stable for the first time in many years, without the government artificially monkeying with the rates so that ICBC does not get enough money and continues to lose money. For the first time, instead of losing a billion dollars, it is actually projecting a break-even year.”
Hmmm.
Not a word about the no-fault scheme — the most fundamental change in the Crown corporation since an attempt in the 1990s to try it failed miserably. Not a word about reversing the recent campaign promise.
Then last week, the big announcement. Apparently, no-fault models were working so fabulously on the flatlands in two provinces, each with only about a quarter of B.C.’s population, Eby was sold.
But he just couldn’t tell the public until the deal was a fait accompli. Opposition and protest can be so messy.
It all leaves a bad taste.
No discussion, simply misdirection and attacks on lawyers, oh, sorry, as they’re now known, “ambulance chasers.”
The attorney-general adopted the tactics of divisive back-room policy-making and it tarnished the administration of justice.
“In exchange for eliminating the legal rights of British Columbians to recover fair damages for their injuries, including no damages for pain and suffering or loss of future income earning capacity, the public is asked to trust that ICBC will provide the injured with treatment and wage replacement benefits, indefinitely,” Rice fumed.
“Do British Columbians really think ICBC has earned their trust?”
No-fault may indeed be the answer to ICBC’s financial woes, but Eby’s method of introducing it raises troubling questions about his effort to avoid public debate.
In making the decision secretly … oops, sorry … “quietly,” he abandoned the high ground in favour of political expediency.
Is it any wonder that across the province — from the rugged snow-choked Interior, to downtown Vancouver’s Oppenheimer Park, to the steps of the legislature — individuals are flipping the bird at the rule of law?