ICBC nears its 50th anniversary. It didn’t come the scenic route, the trip was trying most of the way and this took a toll. So much so that in January 2018 AG Dave Eby made waves by paralleling it to a “dumpster in flames”. He kindled hope of change but what he did was spitting on the dumpster to quench the flames. Worse really, as he raised insurance premiums and created more “opportunities” for lawyers who had ignited and were fanning the flames. He topped it all by making policy renewal a risky nuisance for everyone.
This motivated Premier Horgan to make a surprise appearance, reported in a March 6, 2020, news release, heralding legislation to fix the ICBC, for good, he said.
His plan is seriously wanting but for now I will take issue with one aspect of the promised legislation, that of appointing a new one and utilizing existing “independent” arbitrators to adjudicate ICBC payout disputes. This is meant to ensure lean, mean, prompt, thrifty and fair adjudication of settlement disputes, Horgan said. But it will not work because “independence” is an antithesis to what it is claimed to be.
The whole Justice system, worships “independence” and thrives on it. It is a hard mask to pierce, protecting unfair process and fostering injustice. “Independence” is not a substitute for devotion to fairness.
Equating “Independence” to “Fairness” sustains a host of injustices. “Independence” has been made into a tool for extracting unwarranted rewards such as job security, high pay, release from accountability and more. It is a licence to become power-corrupt and when this happens Justice wanes.
Notably, “Independence” does not preclude ineptitude. But ineptitude of magistrates accounts for much of the deprivation of “quality of living” we suffer. Refer to Hanlon’s Rasor (“Do not attribute to malice that which may be attributable to stupidity”).
Lord Acton’s Power Corrupts syndrome carries no exceptions. Look at Craig James, the former “Independent Clerk” of the BC Legislature. And look at Dictators who are super-independent, by definition. Impunity is the essence of Power.
Justice Robin Camp wondered aloud why a litigant “did not keep her knees together” and caused himself lots of grief. Other judges simply hide their “partiality” and suffer no more than the media declaring them “sympathetic”. Had Camp kept his lips together, he could rule either way, in that and more trials, with impunity, until age 75.
Engineers are judges administering the laws of nature. Some of the decisions I made in my career were about countless lives and vast amounts of wealth. I was always alert to that: Over-design would make me comfortable but I deemed it tantamount to sentencing people to hard labour in the production of waste – similarly under-design could result in sentencing people to die. I had to do it right. In a sense, I had to do it all in the “open”, for nature is seamlessly alert, ever-present, forever ready to react resolutely to misjudgement - it is hard to hide the collapse of a dam ...
Judges and lesser adjudicators can get away with misjudgement, many do and few do it knowingly. Like Carl Sandburg worded it in his ode to Chicago: “I have seen the gunman kill and go free to kill again ...”
The known potent antidote to injustice is open process. The Agora of Athens had no doors. Judges, ostensibly meticulously-selected and paid highly to be “independent”, remain suspect. This is the reason we keep the courtrooms doors wide open. It did work in times past, it does works now too, in high profile trials (Commander Russell Williams and CBCer Jian Ghomeshi). But in the vast majority of court hearings there are no curious media in the courtrooms, the vacuum being conducive to judges succumbing to temptation of arbitrary conduct. They do enough of that to scare people from shopping the justice shops.
Fairness does not result from high pay, neither does it emanate from making the magistrates secure in their jobs; showering them with privileges does not make them virtuous; licencing them to perform irresponsibly erodes dedication to their calling. The potent way to prompt virtue is to make them perform in front of the public eye. Let them honour their post instead of expecting the honour of the post to rub onto them.
At the stage we are at, relief is in doing the Ideas Bank. I do not know of a better way, and unless Horgan and Eby come up with a better way to watch the watchdogs (“custodiet ipsos custodes”) they must do the Ideas Bank. Democracy dictates they do the best known, in this instance it being to embed an Ideas Bank into ICBC.