Introduction to the ICBC No-Fault Scheme

The use of the term “minor injury” is an attempt by the government to mislead the public

May 17, 2018 will be a date to remember as the Provincial government, on the insistence of ICBC, introduced legislation that will severely reduce the compensation of injured victims of car accidents. That is the day when amendments to the Insurance (Vehicle) Act and Civil Resolution Tribunal Act became law. The legislation that passed was:

  1. Bill 20 providing amendments to the Insurance (Vehicle) Act; and
  2. Bill 22 providing amendments to the Civil Resolution Tribunal Act.

Other than a few exceptions, all the changes are to take effect on motor vehicle accidents occurring on or after April 1, 2019. Although ICBC has tried to spin the changes as being helpful to ICBC claimants, the changes are akin to a “no-fault scheme” since compensation for injured victims is dramatically reduced while the at-fault bad driver gains a substantial increase in benefits and compensation for causing the accident.

When the law treats the victim and the at-fault motorist in a similar manner regarding compensation, it is clearly a “no-fault” scheme.

The most significant amendments to the legislation are:

  1. Limiting pain and suffering on all “minor injuries” to $5,500 (indexed for inflation);
  2. Defining most injuries, including significant and permanent ones, as a “minor injury” and therefore making the word “minor” a misnomer;
  3. Restricting compensation for treatment to ICBC’s prescribed rates so that if the therapist charges a higher fee, the fee exceeding the prescribed rate is no longer recoverable;
  4. Eliminating the ability to recover medical expenses and wage loss from ICBC if the claimant has another source for recovery such as extended health coverage or a disability plan;
  5. Removing the right to pursue an injury claim in Court and forcing a claimant to us the Civil Resolution Tribunal (“CRT”); and
  6. Limiting the ability to pursue a future care payout and instead, forcing the claimant to request care through ICBC’s Part VII program indefinitely such that there is no “closure” on the file.

Of particular concern is that Bill 20 provided the government with broad powers to expand the no-fault scheme without having to go through the rigors of the Legislative Assembly. The government quickly capitalized on this opportunity and on November 9, 2018, through Order in Council, introduced further Regulations that further reduced an injured victim’s rights for compensation. The highlight of these Regulations is to greatly expand the “minor injury” definition to include a concussion, psychological/ psychiatric injuries, TMJ injuries and most whiplash injuries. In the result, most injuries will be classified as a “minor injury” even if the injury is a very serious one, such as chronic pain and/or a brain injury.

Clearly, the use of the term “minor injury” is an attempt by the government to mislead the public as most members of society would assume that only mild strains and scrapes are being capped, whereas serious and severe injuries are captured within the definition. The legislation now provides one of the most restrictive compensation schemes in Canada, far surpassing most Provinces.

 

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