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Richard Fowler

Amid COVID-19 response, B.C. political parties pledge action on insurance, police reform

Thursday, October 22, 2020 @ 9:41 AM | By Ian Burns


B.C. voters head to the polls Oct. 24 with competing visions of how to right an economic ship rocked by the wave of the COVID-19 pandemic. But politicians in the province have carved out positions on other issues which had been at the forefront of many people’s thinking before coronavirus and have become more important over the past few months, including tackling the province’s troubled automobile insurance system, dealing with issues of policing and systemic racism and working to ensure employment legislation better helps those involved in the gig economy.

Premier John Horgan called the snap election on Sept. 21, arguing the province needed stability as his NDP had a minority of seats in the legislature and was governing with support from the provincial Green Party. The choice is largely seen as being a three-way one between the NDP, the Greens and the official opposition Liberals.

Among those issues people are being asked to consider is how to deal with the province’s automobile insurance system. In British Columbia, drivers are covered by the publicly owned Insurance Corporation of British Columbia (ICBC). But ICBC has been beset by significant financial difficulties over the past few years, causing the government to take a number of steps to reduce costs, such as caps on pain and suffering claims, introducing a “no-fault” system and giving the provincial Civil Resolution Tribunal (CRT) jurisdiction over motor vehicle accident disputes of up to $50,000.

But the government’s ride on reforming automobile insurance has not been a smooth one, and it lost a constitutional challenge over its decision to limit expert witnesses in injury claims. Over the course of the election, the NDP has largely taken a “stay-the-course” approach, whereas the Liberals have promised to give British Columbians “true choice” by ending the ICBC monopoly and giving drivers a choice between private or public insurance.

Scott Stanley, Murphy Battista LLP

Scott Stanley of Murphy Battista LLP said the NDP’s moves have gone beyond tort reform and have transcended into ideology, leading to an intrusion on the independence of the judiciary.

“I would have less of a problem with tort reform if the ultimate adjudications were done by proper superior courts as oppose to results-oriented tribunals where they can quite frankly stack the adjudicators who share their ideology,” he said. “Lawyers have a role to play in ensuring our judicial institutions remain intact, and to do this they must not turn practice areas into industries that serve their own interests.”

But Stanley said he didn’t think the Liberals offered anybody interested in tort reform much of an alternative.

“Their platform still intrudes significantly on the independence of the judiciary,” he said. “I think private insurers would really struggle to even enter a marketplace where it is no fault — so to say there will be meaningful choice, I don’t see that as being a practical reality. The Liberals seem to have just tried to come up with something which is just a little bit optically different than the NDP but in reality, it is the same.”
 
The response to the death of George Floyd and demands to tackle issues of systemic racism have garnered the attention of politicians around the world, and the major parties in B.C. have also pledged action in this area. The NDP says it will carry out a modernization of the provincial Police Act, create a dedicated hate crime unit within local police forces and reviewing training and procedures on wellness checks, while investing more in community-based mental health and social services. The Greens have also made similar promises to reform the Police Act and review procedures on wellness checks, while moving to deprioritize policing of simple drug possession and pursue the issue of decriminalization with the federal government.

For their part, the Liberals say they will require police services to actively adopt anti-racism and anti-discriminatory conduct policies, and are also promising to bring in 40 additional full-time Crown prosecutors and work with the court system to adopt technology innovations to reduce COVID-19 backlogs and conduct more trials effectively and quickly.

Richard Fowler, Fowler Blok Criminal Defence Lawyers

Richard Fowler of Fowler Blok Criminal Defence Lawyers said reform of the Police Act is an issue that has long been on the table and general commitments to invest in the court system and sheriffs are also welcome, because the pandemic has shown “having the right people there at the right time makes a huge difference.” But he said there is still a “huge problem” with Internet access in courtrooms and operating virtual platforms is proving to be a challenge.

“The quality of the connection is sometimes just terrible,” he said. “Sometimes I think if the justice system were a private business these problems would have been solved a long time ago — Amazon can deliver a package in 12 hours and we are still operating on virtual video technology which it seems like it is 100 years old.”

As part of the Association of Legal Aid Lawyers (ALL), Fowler is played a major role in the negotiation of an agreement on legal aid funding which was reached last year. He said that agreement has largely taken the politics out of legal aid, which he argued had long been underfunded.

“Without question things have improved due to the increase in the tariff and recognition by the government that the work we do is important, which had a huge impact on morale,” he said. “Under the previous government legal aid was devalued, and if you devalue the funder you devalue the individuals who do the work.”

With the impact of COVID-19 particularly acute for those who do not have stable, full-time work, the NDP has pledged to set up a precarious work and gig economy strategy by creating a government-backed, collective benefit fund for independent contractors, the self-employed and part-time workers, developing employment standards targeted at those workers and pushing the federal government to implement paid sick leave. For their part, the Greens have pledged to set up a task force to advise on modernizing employment standards and explore options for flexible work arrangements such as a four-day work week.

Fred Wynne, Tevlin Gleadle Curtis Employment Law Strategies

Fred Wynne of Vancouver’s Tevlin Gleadle Curtis Employment Law Strategies said labour and employment issues haven’t really been front and centre during the election campaign, noting COVID has taken the lion’s share of people’s attention. But people are not looking as favourably as they did when it was in its initial heyday, he said.

“I think it is becoming viewed as a more negative economy as opposed to one which provides opportunity,” he said. “I’m sure there are great opportunities out there as well, but the examples we often hear about are companies which are really trying to squeeze their workers to maintain a really thin profit margin and I think people are really starting to see that for what it is now.”

Wynne noted the debate surrounding the regulation of predatory practices by companies in the gig economy is one that is happening in places like California “and has become heavily political down there.”

“The legal definition of who is and who isn’t a contractor is getting pretty blurry, especially in terms of gig work, and I think a lot of employers in that sector are taking advantage of that fact,” he said. “Incorporating clear criteria on that is a constant battle we face in a number of areas, so there is lots of room for improvement.”

And Wynne said there are additional steps the next government could take, such as better defining layoffs and increasing termination amounts for employees.

“The layoff issue is one which has been at the forefront of the pandemic, and it feels like they have just sort of dealt with that on an ad hoc basis and tried to communicate that there is no default right to a layoff in B.C.,” he said. “But that I think could be better enshrined in the legislation to make that clear.”

In addition to getting the voters on their side, Horgan’s NDP is facing another hurdle — a challenge of its decision to call the election itself. Advocacy group Democracy Watch has announced it plans to file a petition in the B.C. Supreme Court asking it to declare the move to be in violation of the fixed election date measure in B.C.’s Constitution Act, although it emphasized it was not aiming to stop the election itself.

Democracy Watch co-founder Duff Conacher noted B.C. was the first jurisdiction in Canada to enact fixed election date measures in 2011. The organization argues snap elections are unfair not only to opposition parties, as they are usually called when having an election favours the ruling party, but also to people who want to run as a candidate but can’t afford to suddenly drop everything and run.

“By calling a snap election instead of waiting for the fixed election date a year from now, Premier Horgan acted like an old dictator not a new democrat,” he said. “Hopefully the B.C. courts will rule that the premier violated the law when he called the snap election.”

In response to a question about the lawsuit, a spokesperson for B.C.’s Ministry of the Attorney General said all government communications during the election are limited to health and public safety information, as well as on statutory requirements.

British Columbia is not the first province to head to the polls during the COVID-19 pandemic. New Brunswick’s governing Progressive Conservatives were re-elected to a majority government in September, and Saskatchewan votes Oct. 26.

If you have any information, story ideas or news tips for The Lawyer’s Daily please contact Ian Burns at Ian.Burns@lexisnexis.ca or call 905-415-5906.