Trial lawyers join B.C. no-fault challenge

July 11, 2022 — THE PRESIDENT of the Trial Lawyers Association of B.C. is girding for a constitutional battle that he says could ultimately spell the end — or at least a modification — of no-fault auto insurance in Canada.

Bill Dick says B.C.’s Enhanced Care — the provincial NDP’s version of no-fault — discriminates against handicapped victims of auto accidents because it denies them the same rights to the courts held by, for example, victims of medical malpractice.

The TLABC is the second plaintiff in a suit brought by former lawyer Tim Schober against the Insurance Corp. of B.C. He was made a quadriplegic after a motorist struck him while he was cycling in Victoria.

Mr. Schober can no longer practise law, requires 24-hour care from his wife and said he had to spend $130,000 on renovations to be able to navigate his home in a wheelchair.

He has been waiting for months for ICBC to determine how much of those costs will be covered under insurance benefits, and says the wage compensation he is receiving is nowhere near what he earned as a lawyer.

Mr. Schober’s suit, joined by the TLABC, comes less than two months after the B.C. Court of Appeal upheld the provincial government’s right to refer minor injury cases to the Civil Resolution Tribunal instead of a court — a decision the TLABC hopes to appeal to the Supreme Court of Canada.

Mr. Dick said the current lawsuit pertains to the Charter of Rights and Freedoms and could potentially also be appealed as far as the Supreme Court.

“This is going to be a massive battle that the government is going to vigorously oppose,” he said.

He conceded that no-fault legislation has being defended successfully in other jurisdict-ions in the past. But that was “years and years and years ago,” and the trial lawyers believe that Charter analysis by the Supreme Court has “evolved significantly since that time.”

“Right now there’s a battle going on in Alberta about whether they’re going to bring in no-fault. If we can bring attention to what’s happening in Alberta and prevent that from happening, we’re incredibly happy,” he said.

“At the end of the day if (the B.C. case) is decided by our courts in our favour, certainly other jurisdictions are going to have a look at what they do in terms of whether it’s constitutionally valid.”

Mr. Dick dismissed the contention that the trial lawyers association is acting primarily out of self-interest.

“By the time this winds its way through the courts . . . most personal injury lawyers will have moved on to different practice areas.”

If the status quo is allowed to stand, he said, “you are going to be left with a government run insurance company who now is going to control, direct and decide what benefits you get, how much you get, when you get it, and you are going to have little or no recourse to challenge that decision.”

Asked whether the TLABC would be satisfied if the government was ordered to provide for that legal recourse, Mr. Dick said the association would “certainly be happier.”

The B.C. government referred Thompson’s questions about the lawsuit to ICBC.

“Government and ICBC listened to British Columbians when they told us auto insurance was not affordable and so we took action to develop a new model which provides more affordable auto insurance with significantly improved care, recovery and income replacement benefits,” the insurer said in an email.

“Under the old model, an injured person who sought additional compensation through the courts would likely have to wait many years before they received any money and pay up to one-third of their settlement to their lawyer.

“Under Enhanced Care, British Columbians injured in crashes receive all the care they need.

“There is no need to sue for compensation or worry that benefits will run out since benefits are available for life with no overall maximum limit.”

ICBC added: “Similar forms of auto insurance systems have proven to be very successful for years in Quebec, Manitoba and Saskatchewan.”

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