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Caps on ICBC Pain and Suffering Awards an Obstacle to Justice

This is an appeal of an order dismissing a constitutional challenge to the requirement  to pay daily hearing fees in civil trials.(Cambie Surgeries Corporation v. British Columbia (Attorney General),2018 BCCA 385).

This case outlines a few of the issues the BC government will face in trying to justify the denial of rights to the injured with ICBC injury caps, which limit compensation for pain and suffering after a car accident. The increase in ICBC power and monopoly in auto insurance will have a much greater impact on public rights than hearing fees, as individuals cannot hold ICBC and other state actors to account.

The Court of Appeal has acknowledged the importance of access to the Courts as a means of protecting rights. If British Columbians cannot challenge government actions in court,  the government will be above the law. In this case the Court found there was no evidence that daily hearing fees denied access to justice.

The appellants argued that the government should not be permitted to create any impediment to the judicial scrutiny of state action. If the fees can be shown to pose a real obstacle to litigants they will be held unconstitutional to the extent that they can be shown to obstruct access to the courts. The court in this case, however,  found there was no economist’s evidence with respect to the effect of hearing fees on litigants and the challenge was dismissed.

Enforcement of the ICBC injury caps starts April 1, 2019. The NDP coalition responsible for this change will not only impose fees they will eliminate legitimate claims for loss and required claimants to proceed through a complicated government process, without the benefit of a legal advocate or lawyer.

Constitutional challenge will be a duty for many personal injury lawyers when the enforcement of the new ICBC laws begin to limit the pain and suffering of innocent victims to $5,500 for minor injuries. This will not be the only way ICBC claimants will challenge the legitimacy of these NDP/ICBC laws.

As the Supreme Court of Canada has made clear since 1993, the Charter implies a right to counsel as an aspect of procedural fairness where life, liberty and security of the person are affected:  see Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053, at p. 1077; New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46.

Posted by Mr. Renn A. Holness, B.A. LL.B.- Called to the BC Bar 1995

Tags: Constitutional challenges, Lawyer

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