Attorney general thrown for a loss
Sure, a key part of his ICBC rebuild was rejected by the chief justice, who called him offside for trying to push the B.C. Supreme Court around.
Sure, the public auto insurer is on the brink of ruin again (ho-hum) and the provincial budget could have a new hole in it.
But Attorney General David Eby feels the best defence is a good offence. So he came ready to dish it out at the legislature’s first argument over the court decision that rejected cost-saving curbs he placed on expert witnesses.
He conceded it was a “difficult day,” but then threw everything he had at the Opposition Liberals for their generous contribution to the ICBC crisis.
It looked a little desperate, but it was interesting. “I’m going to tell a brief story,” he said, about a Kelowna meeting in 2015. The car dealers’ lobby group, a donor to the B.C. Liberals, met with the minister then responsible for ICBC, Todd Stone.
One of ICBC’s big repair facilities was on the agenda, said Eby. Someone cracked “You’re going to give it to us?” as a joke.
According to Eby, it was no joke, because Stone announced just that. With a dramatic flourish, he added: “There was an audible gasp.”
Giving away a multimillion-dollar property to a lobby group that supports the government would have raised some eyebrows. It turned out to be legally impossible and couldn’t be done, Eby said. He also spilled tales about other sales that were booked as revenue before they happened, if they took place at all.
It didn’t have anything to do with Eby’s current plight, but it took the heat off for a few minutes, and showed there’s an endless well of ICBC stories that make you wonder.
The more immediate cause of wonderment was the off-side call by Chief Justice Christopher Hinkson. Part of the NDP’s ICBC salvage effort is a new rule to limit the number of expert witnesses in vehicle injury cases, those rental authorities retained by both sides who testify on damages — for fat fees.
Eby announced it in February, saying they were being used disproportionately and were partly why ICBC was so deep in the red.
But there was a problem. It was hinted at a few days later, when Eby issued a “clarification.”
It was about the rules of court, which is where the curbs were set forth. Eby’s statement said that he engaged with the rules committee about the new restrictions, and thanked the judges and lawyers for their input.
But he had to confess “the rules committee did not recommend these changes.”
In fact, it was not asked to approve them. “These changes were a decision made by government.”
The trial lawyers immediately headed to court.
On Thursday, Eby was hung by his own news release. The chief justice said government has no business changing court rules and ruled him out of order on multiple fronts, citing custom back to the days of Judge Matthew Begbie.
The issue in front of him was: “Does the legislation … interfere with the court’s ability to hear and determine the cases that come before it?”
His answer was: Yes. It “compromises and dilutes the role of the court, and encroaches upon a core area of the court’s jurisdiction to control its process.”
The government could appeal, or legislate an end-run around the issue. But the rules were to come into wide effect on Feb. 1, 2020, and it looks like a big cost savings just disappeared.
How big is open to question. The government cited $400 million when it imposed the rule, but that might have been hyped to bolster the case for it.
Eby sulked a bit about losing the case, but dwelled on how Liberals buried reports that warned of the financial crisis. (“I hear the driveway crew out front just dug up one.”)
The Opposition responded by citing his court losses. The most pertinent one was in federal court two years ago, where B.C. was chastised for not knowing basic rules in one of his cases.
Meanwhile, the experts will continue competing in court at our expense until Eby figures how to execute cost-saving ideas properly.
Les Leyne covers the B.C. Legislature for the Victoria Times Colonist.