17 Jul David Eby and the NDP Acknowledge Problems with the Current Judicial System When it Comes to ICBC Claims
It’s nice to see that David Eby is acknowledging that the court backlogs for ICBC claims is unacceptable.
Naturally, he blames the COVID-19 shutdown for the backlog but does not acknowledge that ICBC has any blame for this problem. This failure to acknowledge ICBC as the root cause of the problem exemplifies how David Eby and the NDP government are clearly one-sided in favour of ICBC when it comes to any political decisions.
The latest recommendation from David Eby is to put civil jury trials on hold until there is a substantial change in the COVID-19 pandemic. He’s quite right that the social distancing rules put in by his government make jury trials nearly impossible. For starters, how does one keep the jury members 6 feet apart? How do you have less than 50 people in the courthouse when jury selection is happening?
What Mr. Eby and ICBC does not mention is that in actual fact, it is ICBC that is driving the jury system. While statistics are not available, I would not be surprised if 95% of all the civil jury trials proceeding in the Province of British Columbia are on the request of ICBC. That is, ICBC uses jury trials because they are hoping that the jury members will be influenced by the public announcements of high premiums created by lawyers and injured parties to basically award a low dollar amount. Also, because jury trials are unpredictable, it gives them a tactical advantage simply because they can afford to lose and can afford to appeal a bad decision whereas most injured victims cannot.
This is akin to professional bullying where you have a large entity with unlimited resources throwing up roadblocks and defences on a file versus the little guy who was the victim of a car crash.
Rather than getting into a public debate about jury trials, all David Eby has to do is pick up the telephone and call his colleagues at ICBC and announce that ICBC, effective immediately, can no longer file jury notices. This would basically eliminate the problem with jury trials and the worry over the COVID-19 pandemic requirements. It also streamlines the court system because we all know that judge alone trials take a lot less time than a jury trial and are much more certain, resulting in both parties being more realistic in settlement discussions before trial.
So Mr. Eby, if you’re listening, pick up the phone and mandate ICBC to drop their jury notices forthwith. You’ll save a lot of court time not to mention you will force ICBC to save millions of dollars on legal costs spent unnecessarily pursuing jury trials.
Regarding the binding arbitration that David Eby has suggested, currently there is arbitration clauses under what’s called Under Insured Motorist Protection (UMP coverage). Simply put, having worked in the industry for 30 years and completed many UMP claims, arbitration does not work. First of all, ICBC does whatever they can to avoid putting the case into arbitration and throws up every roadblock possible to avoid that. Second of all, even if you can get ICBC to agree to appoint an arbitrator, finding one that’s objective that both parties can accept is very difficult. There is but a few seasoned lawyers or retired judges that will take on arbitrate cases. If suddenly there is a raft of new referrals to arbitration, it will be very difficult to find a corresponding number of arbitrators that will hear the decisions in a timely basis. Unfortunately, most lawyers that would act as an arbitrator are painted as being defence friendly or plaintiff friendly. It’s hard to find an individual that is painted as neutral, fair and objective.
Thirdly, costing of arbitration is prohibitive to say the least. The arbitrator overseeing the case usually charges $500 plus an hour and so the cost of doing a full arbitration is very expensive. ICBC almost invariably requires that the Rules of Court apply to the arbitration so rather than being able to short-circuit the necessary evidentiary requirements, the injured claimant is forced to put forward a full case akin to what would happen in the courts in front of a judge. Therefore, there is actually no cost savings with an arbitration but rather, significantly more cost because you have to pay for the arbitrator. Indeed, on the last arbitration I pursued, the arbitrator’s legal bill was a staggering $200,000 plus once everything was completed.
For the reasons above, the idea of binding arbitration is something that will not work short of a whole scale change in the manner in which arbitration can be completed.
Overall, it’s nice to see that David Eby and the NDP are acknowledging problems with the court system and ICBC claims but it’s time for them to acknowledge that ICBC’s own practices are the root cause of the problems in the system. As noted above, it is ICBC that uses the jury system by-in-large and also, it is ICBC that makes binding arbitration very difficult to pursue and very costly. If ICBC is pressured to change their ways, there will be tremendous cost savings to them not to mention a clearing of the court backlog.