Ian Mulgrew: Attorney general under fire for bowing to ICBC concerns

B.C. Supreme Court justices and senior lawyers have quit an important advisory committee after Attorney General Suzanne Anton bowed to concerns from ICBC and rescinded cost and fee changes to civil litigation.

The remaining lawyers said that without judicial representation, the 14-member blue-ribbon body was “essentially defunct.”

In an astounding rift between the judiciary and the government over the cost of civil lawsuits, the en masse resignations followed cabinet’s March 31 repeal of sections of an order-in-council announced in January and scheduled to come into force July 1.

Those sections reflected the committee’s recommendations on tariffs and the calculation of approved expenses in a lawsuit — the successful litigant normally recoups some, but not all, of their out-of-pocket costs.

The changes streamlined the way of determining what expenses were allowed and it was hoped would have led to the successful litigant recovering a larger share but still not all of their legal costs.

It is unclear whether ICBC has been too aggressively defending losing lawsuits and the increased costs under the now-rescinded changes were a result — though that is what the numbers suggest.

“Our preliminary estimate on what the change could cost ICBC customers is approximately $250 million in the first year and an ongoing annual cost of at least $90 million,” said ICBC spokeswoman Lindsay Olsen.

Committee members’ deliberations and their resignations fall within the scope of cabinet confidentiality and so they are essentially gagged.

“I am not aware of any occasions when this has occurred (since the committee was created in 1977),” explained Bruce Cohen, the Superior Courts communications officer.

The attorney general said she was impelled to act after ICBC raised concerns at “the 11th hour” with the Finance Ministry.

“ICBC supports and appreciates the Attorney General’s decision to take the time to fully consider all the information available regarding these changes to ensure the impact on all the affected parties is understood,” Olsen said in an emailed statement.

“Anything that increases the cost to defend motorists could have an impact on everyone’s insurance rates.”

However, the Trial Lawyers Association of B.C. — with a large number of personal-injury litigators among its membership of roughly 1,400 — was surprised to learn of the Crown corporation’s involvement.

“The changes were good and were good for the practice of law,” said Aseem Dosanjh, president of the group.

“From our perspective as consumers, we thought it was a smart approach. I don’t particularly like the optics of this … not even a proper transparent explanation was given to us. The AG never point blank told me it was ICBC.”

Anton told him that she was rescinding the changes because “other people” had concerns, he said.

“And I can appreciate why she wouldn’t want to tell me that,” Dosanjh added, “because we’d probably be a little more concerned and want to know why the AG was taking political instruction from the Insurance Corp. of B.C. when she has a well-constituted committee to do that for her.”

Anton maintained she was not taking ICBC’s side or blocking the changes forever, she only wanted to allow further consultation.

“ICBC put up its hand and said the implementation of this policy for July 1 is going to have an impact on us,” a ministry spokesman said.

“The attorney (general) didn’t say, ‘Oh, well I’m concerned about it’ and take up their case. She just said, ‘Oh well, this is news to me,’ and she wanted to give them a chance to make their case.”

Anton maintained that the committee fell down on the job this year and then wouldn’t schedule an emergency meeting with her to deal with the problem.

“I don’t think she’s excited the way this played out,” her spokesman said.

“But she needed to rescind the (order in council) so she could allow that consultation, understand any impacts on ICBC … I don’t think that was a fault issue, these were just circumstances that were unexpected and the minister finds it unfortunate.”

The committee’s membership and stature in the legal firmament belied that explanation.

Appointed by the attorney general, it included judges, masters, representatives of court services, legislative counsel and members of the bar.

The members of the private bar were chosen for their expertise in civil or family litigation and also to broadly represent larger and smaller areas of the province.

“The composition of the committee, together with a policy of expansive consultation, ensures that proposed amendments to the rules are evaluated in the broadest context,” according to its mandate.

After citing that responsibility, the ministry spokesman said Anton wasn’t satisfied the expansive consultation “was being done here … she went back to the committee and said this needs to be addressed … the main operators in the justice system didn’t know anything about it.”

Again, the committee’s membership makes that questionable — Ed Montague, for instance, was former president of the Trial Lawyers and a current board member.

Still, the minister’s aide emphasized she’s not taking ICBC’s side: “She’s saying we have to be able to let them make their case on the impact … we need to hit the pause button. She wants it done right.”

The committee included Justice Nathan Smith (Chair), Justice Paul Pearlman, Justice Robert Punnett, Justice Barbara Young, Registrar Stuart Cameron, Peter Behie, Q.C., Daniel Bennett, Q.C., John Hogg, Q.C., Maureen Lundell, Q.C., Dinyar Marzban, Q.C., Kenneth McEwan, Q.C., Ed Montague, Kevin Kohan, Legislative Counsel (ex officio), Jess Gunnarson, Justice Services (ex officio), and Jill Leacock, Legal Counsel and Secretary.