CTV News: ICBC’s new ‘no fault’ model leaves accident victim feeling betrayed

As seen on CTV News Vancouver by Shannon Paterson, August 4th 2021.

Vancouver cyclist Gary Kalmek suffered a broken leg, a broken arm and three broken ribs when he was hit by a car while riding his bike at Main Street and 15th Avenue in Vancouver in early June.

After undergoing multiple surgeries and spending a week in hospital, the 38-year-old library tech assumed he would be compensated for pain and suffering.

ICBC is paying his medical expenses and lost wages, but under the province’s new “no fault” model, which came into effect on May 1, most accident victims can no longer sue the offending driver and the insurance corporation.

“It definitely feels like there should be compensation,” said Kalmek. “I cycle, I play sports as well. As much as I try to stay optimistic about my healing, if I have a limp for the rest of my life, if I can’t lift my arm above a certain height for the rest of my life, then those things are taken away from me.”

Gary Kalmek

Vancouver cyclist Gary Kalmek suffered a broken leg, a broken arm and three broken ribs when he was hit by a car while riding his bike at Main Street and 15th Avenue in Vancouver in early June.

Vancouver personal injury lawyer Manjot Hallen says his firm is getting many calls from accident victims like Kalmek.

“ICBC is going to treat his and other injuries like minor injuries and say, ‘Look, you’re not entitled to any pain and suffering damages,’” Hallen said. “And we as lawyers, while we get these calls and we sympathize with the victims, we can’t do anything to change that. We can’t fight back.”

Removing lawyers from the mix is the main point of moving to a no fault insurance model.

“Legal costs were certainly a factor under the previous insurance system,” said ICBC spokesperson Brent Shearer. “With enhanced care, by largely removing those legal costs, we are able to take that money and put it back into improved care and recovery benefits and lower auto insurance (premiums) for everyone in British Columbia.”

Shearer added that, on average, B.C. drivers are saving more than 20 per cent on their premiums compared to the old model.

But Hallen argues the trade off isn’t worth it.

“People are getting a little bit of a rebate on your insurance, whether its 10 or 20 per cent, but what they’re discovering is when they’re involved in motor vehicle accidents, they’re not going to get any compensation for them,” Hallen said.

While Kalmek won’t be compensated for his injuries, he was told the driver who hit him will have to pay higher insurance premiums.

“That just felt like a betrayal, that ICBC was just was trying to get more from (the accident),” he said.

Kalmek is hoping to one day cycle and play sports again. He’s currently off work and walking with a cane. He has permanent scars on his leg and shoulder, as well as a metal rod, plates and pins inside his body.

“Even if I do heal, those things will be a reminder of what has happened, and will be a reminder of ICBC also just disregarding the scars and the plates and everything else that has happened to me,” Kalmek said. “It just feels terrible.”

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About the BC Wrongful Death Law Reform Society

‘In Their Name’ is the campaign of ‘The BC Wrongful Death Law Reform Society’ – a BC registered non-profit organization comprised of volunteer families who have lost a loved one to wrongful death in BC and were denied access to justice. In response to the biggest human rights issue facing the province today, our goal is to modernize British Columbia’s antiquated wrongful death legislation, which predates confederation (1846). Under current legislation, the value of a human life is measured only by the deceased’s future lost income, so long as they had dependents.

As a result of the province’s antiquated law, access to justice has been denied to the families of the wrongfully killed who do not meet this discriminatory criteria. This has affected especially vulnerable groups, namely children, seniors, the disabled, and anyone without dependents when they are killed by the negligent or intentional acts of another.

BC is presently the last of all the provinces, yet to have undertaken this critical legislative modernization to allow for dignity, value, and protections for all its citizens under the law.

When it’s ‘free’ to kill in BC, wrongdoers are not held accountable. This lack of general deterrence holds the province back in terms of incentivizing innovation of safety measures and protocols to prevent wrongful deaths in the first place.

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The Premier of British Columbia, David Eby, is responsible for the modernization of BC’s wrongful death laws. Our Society provided David Eby with the drafted ‘Wrongful Death Accountability Act’ when he was acting as the Attorney General for British Columbia for 6 years between 2017-2022. The new Attorney General, Niki Sharma, also shares responsibility as she is the Minister responsible for the ‘Family Compensation Act’ – the current guiding piece of legislation that the civil courts must follow in cases of wrongful death. Minister Sharma receives feedback from the regional ‘Members of the Legislative Assembly’ (MLAs) and follows orders from the Premier, David Eby, who is ultimately responsible for modernization.

Reform is presently at a standstill, as the BC NDP government does not presently view access to justice for the surviving family members of the wrongfully killed as a priority in this province. This is despite the fact that the families behind our Society have been fighting for modernization for over two decades. And despite the fact that all other provinces, including the Yukon, have already modernized in most cases long ago.

The only way to move this forward is by creating massive public awareness and outcry for legislative modernization. Only under the scrutiny of the public and the media will our politicians be forced to take this necessary, and long overdue action.

How many more people will need to die from the same preventable wrongful actions before our politicians will do their job?

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