ICBC no fault insurance and the Civil Resolution Tribunal

The mandatory ICBC no-fault insurance system that has been proposed for British Columbia is intended to save money by no longer spending time determining who was at fault in an accident.

Someone who caused an accident would receive the same benefits as the person they crashed into. 

Disputes would, however, still arise with respect to how seriously some was injured, or how much compensation they should be provided. It just wouldn’t matter if the person caused the accident or not. 

Currently, if someone has a dispute with ICBC, they would be entitled to go to court to have a judge decide what they are entitled to. 

The no-fault scheme would also prevent people from going to court in most circumstances, and disputes would be resolved by an entity called the Civil Resolution Tribunal. 

The Civil Resolution Tribunal was established to deal with minor strata disputes and very small civil claims of less than $5,000. It operates online in a fashion similar to a PayPal or eBay dispute resolution system. 

For very minor disputes, like those for which the Civil Resolution Tribunal was intended, this makes sense because deputes can be resolved quickly and inexpensively. Not every strata dispute over a BBQ on a patio needs to go to court. 

The Civil Resolution Tribunal is not, however, an appropriate mechanism to resolve more serious disputes that involve the provincial government, or ICBC, which is entirely owned by the provincial government. 

Unlike judges, who are appointed for life, and are independent of government, the adjudicators who work for the Civil Resolution tribunal are appointed by the government on renewable, short term, contracts of between 2 and 4 years. 

Someone who is dependent on the government for continued employment should not be deciding disputes that involve the government.

If you had a dispute with your neighbour, you would not want someone employed by your neighbour to decide the issue. 

As of April 1, 2019, the provincial government gave the Civil Resolution Tribunal authority to decide disputes with ICBC involving up to $50,000. 

A review of Civil Resolution Tribunal decisions from July 1, 2020, until October 7, 2020, shows that of 30 disputes involving ICBC, 27 were decided in favour of ICBC, and 3 were decided against ICBC.

Whether or not ICBC no-fault insurance is a good idea, disputes with a government-owned insurance company should not be decided by people who depend on the government for continued employment.

Also discussed on the show is a decision of the British Columbia Court of Appeal overturning a first-degree murder conviction. 

The conviction was based on entirely circumstantial evidence after the accused’s wife drowned in a lake.

The central issue on the appeal was the use a jury could make of statements the accused provided to the police concerning how his wife drowned. 

Ordinarily, if a statement by an accused person is disbelieved, it’s no evidence of any kind. Only in limited circumstances can a disbelieved statement be treated as evidence of guilt.

Follow this link for a transcript of the show and links to the cases discussed.

Transcript

Legally Speaking Oct 8 2020

Ryan Price [00:00:00] It's time to do, Legally Speaking, with Michael Mulligan from Mulligan Defence Lawyers. Let's bring him up on the line. Michael, how are you doing today?  

Michael T. Mulligan [00:00:08] I'm doing great. I can't believe they let Adam out of the studio for any kind of a vacation. It's an outrage.  

Ryan Price [00:00:14] I agree. And actually, Adam is one of those guys who hates the idea of taking time off. He wants to be here every single day. And we have to make him leave the building every once in a while just to take a break. So, I'm glad he's taking a break. And we look forward to having him back, though, on Tuesday when he's well-rested after a long, long weekend. But one of the nice things for me when I get to fill in for Adam is I get to talk to you. I always enjoy, Legally Speaking segments and we've got a lot to cover today. And I'm happy to see that you have ICBC on the mind because that's been in the news quite a bit this week. The B.C. Liberal Party, with some campaign, promises to break the monopoly at ICBC and the ads you're probably hearing on the radio and elsewhere. There's a lot of BC liberals slamming this whole idea of the no-fault insurance that's we're all going to be living under with ICBC. So, with that in mind, you're taking a look into that as our first story.  

Michael T. Mulligan [00:01:05] Yes. And I must say, I've been happy to see that there has been some debate and discussion about the wisdom of the proposed changes. I've been watching that, that issue carefully for a while since it was proposed largely from, I must say, a fairness perspective. I'm not a lawyer who does ICBC cases. I'm a criminal lawyer. But I certainly see lots of people who are in the justice system who are dealing with ICBC and related issues and so I've watched with interest what's been suggested. And the broad thrust of it is that the, the NDP, has proposed that we move to a system that would be described as a no-fault system and to maintain ICBC monopoly over insurance in the province. And the essential idea with a no-fault scheme is that unlike our current scheme, which is based on who is who was negligent or who caused an accident, the idea is that we could save money if we don't spend any time trying to figure out who was responsible for an accident. Right. Currently, if there's an accident, one of the issues that might well go to court to be determined would be, well, who caused it? Right.  

Ryan Price [00:02:29] Yeah.  

Michael T. Mulligan [00:02:29] So if somebody's careless, did they drive through the red light? Were they not looking at what was going on here? What, what caused this? And a large part of the concept would be, well, let's just not spend any time worrying about who caused the accident. And we'll just move on to paying the hospital bills. And so, one for people who might have been injured. I mean, the idea there is that we would save on expenses determining who caused it. Now, there are, of course, legitimate criticisms of that. Many people say, look, it's not fair that somebody who's careless, who or who caused an accident should be treated the same way as somebody who is innocently injured in it. But that's the nature of that proposal. Now, there's another important aspect to what's been suggested by way of changes by the current government in terms of how disputes would be settled. Right. Currently, if somebody were to have a dispute with ICBC determination, for example, of who was responsible for an accident or, you know, how much should be paid to fix their car or for, you know, lost wages or whatever it might be, if there was a disagreement, a person would be entitled to go to court to have a judge decide whether, you know, who was responsible for the accident or what would be the fair amount of compensation that for whatever loss was suffered. And what has been proposed as part of this No-Fault system is that people would no longer be allowed to go to a, go to court, to ask a judge to make a decision or overrule what ICBC thinks should happen. And the current government has pointed to that as a way to save money. They say courts are expensive. Couldn't we save money if we don't let people go there any longer? And what they have suggested as an alternative is using a body called the Civil Resolution Tribunal. And that's an organization that has existed for some time in BC. It was originally conceived to deal with very small, small claims issues or other issues like strata disputes. You know, let's say somebody is having some argument with their strata about, you know, the barbecue on the deck or whatever it might be. The idea was to create this sort of. Online kind of PayPal esk, resolution system to deal with those kind of issues. And for those things, it's probably not an interpreter, inappropriate sort of level of adjudication. Right. If somebody is having a fight over whether they should be permitted to barbecue on their deck in their strata or having some fight over some, you know, $500 fence dispute, that seems like not a bad way to approach it. But what the government has already started to do, and they did this starting back last year, is they started to make this civil resolution tribunal responsible for dealing with disputes concerning ICBC. And as part of the No-Fault suggestion, they would be, for many disputes, the only place somebody would be able to go if they had a disagreement with how ICBC was treating them. Right. Currently, you could go to a court, but the government wants to save money, require that any if you don't like what ICBC is decided about your case. This would be the only place you could go. And that caused me, one of the things I must say I enjoy about doing this show, is it prompts me every week to go and have a look at recent decisions to see what courts and others are doing, right. It's a good, healthy, professional thing to do. And so, I noticed in doing that, this week, caused me to have a look at a number of decisions that are now showing up from this civil resolution tribunal, dealing with disputes concerning ICBC. And the I should say there's a principled concern about whether that tribunal is an appropriate way to resolve disputes a person might have with the ICBC. And the reason for that is that unlike with judges, who are independent of government and who are appointed until they're 75, right. They can't be fired if you don't like a decision they make, the people who are on the civil resolution tribunal making decisions are only appointed on short term contracts by the government two to four years. And the concern that arises is you've got a group of people whose job depends on the government making decisions, where there's a dispute between the government-owned monopoly insurance company and the individual. And so there would be a basis, as a matter of principle, to be concerned about whether that kind of a body would be genuinely fair and independent. Right. When you've got the government-owned ICBC and they're also appointing to people who, in some cases, will be the only arbiter of a dispute with ICBC. And that caused me to have a look at how decisions are currently being made in cases that are now going to this civil resolution tribunal.  

Ryan Price [00:08:02] Okay.  

Michael T. Mulligan [00:08:03] And I looked at decisions that they had made, and I went back to the beginning of July and just had a look at the outcome of disputes that people brought to the Civil Resolution Tribunal for cases that they can currently decide where a person had a dispute with ICBC. And you can now look those up. There's a website called CanLII, which is a free database of court decisions and these civil resolution tribunal decisions are also now reported there. And so, I looked up what was the outcome when somebody went and had a dispute with ICBC and went to this civil resolution tribunal with members that are appointed by the government in that way. And the result between July and when I looked at it yesterday, I found 30 decisions where ICBC was being, somebody making a claim against ICBC and took it to that tribunal for a determination. And of those 30 in 27 of them, the claim was dismissed. And people only succeeded in three of them. So, the outcome where people took cases to this civil resolution tribunal when they had a dispute with ICBC, at least for that period of time, the outcome was 27 to three in favour of ICBC.  

Ryan Price [00:09:22] Hmm.  

Michael T. Mulligan [00:09:22] And now there can be a variety of reasons for that.  

Ryan Price [00:09:25] I was going to say, like, it could just be it were ridiculous claims. But I guess, you know, you look into it, I'm sure.  

Michael T. Mulligan [00:09:30] No, that's true. Right. And each one would have to be decided on its merit. But I can tell you that's a very different outcome from what you would see if you looked at court decisions involving ICBC as a defendant. You do not see a pattern which is so completely lopsided.  

Ryan Price [00:09:48] Okay.  

[00:09:48] And you would also have interests because there was actually a case that went before the Civil Resolution Tribunal in who's decided April 21st and in that case., the person who is again having a dispute with ICBC, complained that the adjudicator couldn't be perceived to be independent. It was the argument was there was a reasonable apprehension of bias because they were appointed by the government, ICBC is owned by the government, right.  

Ryan Price [00:10:20] Right.  

Michael T. Mulligan [00:10:20] But look, there just isn't a reasonable perception of independence there. And the adjudicator who decided that one of these people who works on contract for the Civil Resolution Tribunal rejected the argument and said this, said "further I find that recusing myself on the basis that these statutory appointment process gives rise to a reasonable apprehension of bias would frustrate the tribunal's ability to discharge its statutory mandate, as every tribunal member would be effectively be excluded from deciding cases within the tribunal's exclusive jurisdiction." Now, it's a little bit of a legal mouthful.  

Ryan Price [00:10:58] Yeah, I was thinking that I need some translation there.  

Michael T. Mulligan [00:11:01] Basically, it's saying if I find myself to be biased because I am appointed by the government on a short term contract and this is a dispute involving the government owned insurance company, all of the members of this tribunal will be biased or ever reasonable perception of bias for the same reason. And therefore, we couldn't hear these cases. And I must say, that's a little bit of circular reasoning. Right.  

Ryan Price [00:11:25] And yeah, we're not I'm not saying that I'm not biased. And you're saying that, you know, I look at everybody else, too.  

Michael T. Mulligan [00:11:30] Right. If we, if I found that, we'd all be biased for the same reason. And I should say this, when a when there's a decision being made about whether there is bias in place, it's not necessarily an argument that the individual person who's on some short term contract is necessarily themself biased, but it would be analyzed from the perspective of whether they would be a reasonable apprehension of bias. So, somebody is fully informed as to what's going on here and how these people are appointed and what they're doing. Would you have a reasonable perception that they are not independent? And the concern there is, as I've said, you've got short term contracts appointed by the government making decisions where the government's monopoly insurance company is owned entirely by the government is one of the parties. And so that on its own would be, I think, a reasonable cause for concern about whether that's a fair and appropriate way to address those kind of disputes. And then, well, each individual decision, of course, would be on its merits, and it could be that just the overwhelming number of cases had no merit. The, in fact, the outcome of decisions where somebody is claiming that ICBC was wrong or didn't compensate them properly when the result of that, at least for the last few months, is 27 to 3, it might cause you to be more concerned about whether what is going on here does have a reasonable perception of being fair and unbiased. And if the proposal for No-Fault monopoly, no fault insurance was implemented in many cases, it would mean that if you disagreed with how ICBC was treating you, your only remedy would be to this civil resolution tribunal with people who are all appointed by the government on these short term contracts. And so, I think all of that background and what we can see and how decisions are currently being made should at least be a cause for concern about whether what is being suggested would be fair to people. And that's, I think, really got to be the bottom line. You can debate about whether you think No-Fault is a good idea. Right. The idea of not caring about who caused the accident. But at the end of it, if there's a dispute about whether somebody is being treated fairly. It should be that a person is able to go to an independent decision maker whose job isn't dependent on, frankly, one of the parties to the dispute. That's why we have independent judges and why we don't have judges that are only a judge for a short time if the government continue like them, right?  

Ryan Price [00:14:24] Yeah. Yeah.  

Michael T. Mulligan [00:14:25] You wouldn’t feel too comfortable if you thought, you know, hey, that judge is looking to get is his or her position renewed next month. And I've got to go there and make some argument that the government hasn't treated me fairly. And so, whatever is, whatever happens in terms of the whether we should have an awful system or not, an overall system, whatever system we have ought to be fair. And there ought to be a mechanism for people to have a and independent decision maker resolving disputes and the independent decision maker needs to have appear to be, in fact, independent. And so, given the given how it's currently working and the outcome that we can see, anyone's free to go and look at the decisions if they wish. TI think there's real reason to be concerned about what has been happening and indeed what it's been suggested in the future that would expand it.  

Ryan Price [00:15:22] This is, Legally Speaking, with lawyer Michael Mulligan from Mulligan Defence Lawyers. Thank you so much for taking us through this look at ICBC and the no fault insurance model we might be moving towards and some of the dispute resolution questions that come out of it with it being in the news so much this week with it becoming a campaign issue for different parties. It's good to kind of get a good look at some of what the issues are. We're late for our break and we do have another story we want to cover, Michael. So, we should try to leave at least a few minutes for this. A first-degree murder conviction overturned on appeal in BC with an interesting story behind it. We'll talk about that next.  

[00:15:58] COMMERCIAL BREAK.  

Ryan Price [00:15:58] We have, legally speaking, going on right now with Michael Mulligan, a Barrister and Solicitor with Mulligan Defence lawyers. And Michael, I'm sorry, we only have five minutes left to try and pack in what sounds like a really interesting next story. What do you got for us?  

Michael T. Mulligan [00:16:14] Sure. I think I can probably sum it up in that. So, I thought this was just a really interesting fact pattern and there's, I think, an interesting legal issue that people should be aware of. And so this was a case of a fellow who was convicted of first degree murder and he had a trial where there was a hung jury and then there was another trial and he was convicted, which was ultimately just overturned by the Court of Appeal. But the fact pattern involved a circumstantial case of first-degree murder. And one of the really interesting issues was what is a jury supposed to do with a statement by an accused person where they don't believe it? Can that be used as a basis to convict somebody of murder? And here's the fact pattern right. Here's the nutshell. So, this fellow was out on a camping trip with his wife and they were taking an early morning, morning boat ride in a small zodiac, fishing. And it's clear that the wife of the accused fell overboard and died of drowning. The husband provided a statement to the police describing what he said happened. And the Crown's theory of the case was that the, in part at least, that the statement was so unbelievable that it ought to be seen as evidence that he was intentionally fabricating a story. And on that basis, he should be convicted of murder. So, here's the story for listeners. So, the story that the man told us he said we were in a boat on the Zodiac on a hot day. He was on his evidence driving the boat at the back, fishing with two rods out. He claimed he heard a splash and that his wife fell into the lake holding a sun umbrella that she couldn't swim. He claimed that he had a he described the stupid fisherman's instinct and rather than immediately stopping, rolled in one of the real's of the fishing rod that was out and then realized he was getting too far away from her, threw the other rod in the water, turned around and then was unsuccessful to pulling her over the water as a result of being too large and heavy to dive down to rescue her. He claimed he went to shore, got a rock, went out and eventually managed to pull her up, but was too late and he was unable to revive her. That was the story he told her.  

Ryan Price [00:18:47] Sorry, why did you need a rock?  

Michael T. Mulligan [00:18:48] He well, he said he was unable to dive down to the bottom of the lake to rescue her.  

Ryan Price [00:18:53] He knew he needed the weight to pull them down.  

Michael T. Mulligan [00:18:54] He needed the weight.  

Ryan Price [00:18:55] okay.  

Michael T. Mulligan [00:18:56] He was he's six foot seven and 400 pounds. And he thought he just couldn't dive down.  

Ryan Price [00:18:59] Gotcha. Okay. I'm following now.  

Michael T. Mulligan [00:19:01] So the Crown said this is so unbelievable, this story. And also added to that they had renewed life insurance on each other a short time before this event. The Crown argued that the jury ought to not only reject this evidence but should find that it was an intentional fabrication. And that's the interesting little legal point, or one of them. And the idea there is that if somebody, an accused person, gives some version of events, you know, I'm innocent. I didn't do it. The starting point would be if a jury or a judge doesn't believe them when they say, I didn't do it or something else happened, that isn't necessarily evidence that they are guilty. Right. It's just well, you just didn't believe this explanation.  

Ryan Price [00:19:44] Yeah.  

Michael T. Mulligan [00:19:44] But if you can prove that something was an intentional fabrication, that might be evidence that could be relied upon to show the person was guilty and seeing things to avoid being convicted. Here are a few other interesting little titbits of evidence included the fact that a year after the event, police went back and they dove down and found, indeed a sun umbrella and a fishing rod at the bottom of the lake. And ultimately, the Court of Appeal found that this wasn't the sort of story which was so inherently untrue. Right. Likely, one of the examples given was if somebody said, you know, aliens pushed my wife into the lake, you might say, well, that's just obviously fabricated and we can conclude that. So, the Court of Appeal found that the there's nothing in this story, even though you might say, well, I you know, I don't believe somebody would reel in the fishing rod or, you know, I don't believe that you would need to go get a rock to dive down or whatever it might be. That this wasn't the sort of statement which was so obviously fabricated that it could have been used to show that the person must have been guilty. And so on that basis and some others, the Court of Appeal found that the jury verdict of guilty could not stand and it will be for the crown to decide whether they wish to try prosecuting this man a third time on this circumstantial fact pattern for what they allege was the murder of his wife.  

Ryan Price [00:21:15] All right. Doesn't necessarily mean he didn't do it, but you can't convict him based on the fact that his story seems silly.  

Michael T. Mulligan [00:21:20] Yeah, yeah. I think that's the essence of it. Even if you think the story is silly and you reject it.  

Ryan Price [00:21:25] You still need proof.  

Michael T. Mulligan [00:21:26] That doesn't necessarily mean the person's guilt. Right.  

Ryan Price [00:21:29] What a fascinating story and some interesting legal thoughts into it. I'm afraid we're right at the time with 10 seconds left. Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers, he's here at this time every Thursday for Legally Speaking. And I look forward to the next edition.  

Michael T. Mulligan [00:21:44] Always a pleasure. Thank you very much for having me.  

Automatically Transcribed on October 8, 2020 – MULLIGAN DEFENCE LAWYERS