Major roadblock in BC's minor injury reforms

Background

Effective April 1, 2019, the BC provincial government introduced a package of legislative reforms addressing BC motor vehicle accident claims.

The amendments to the Insurance (Vehicle) Act included a new cap on the amount of non-pecuniary damages that may be awarded in claims where one or more of the injured party's injuries were agreed to be, or assessed as being, a "minor injury". "Minor injury" is defined in both the Insurance (Vehicle) Act and Minor Injury Regulation. The minor injury cap amount is $5,500.00 for minor injuries arising from accidents that occurred between April 1, 2019 and March 31, 2020, and $5,627.00 for accidents that occurred after April 1, 2020.

The amendments made to the Civil Resolution Tribunal Act granted jurisdiction to the BC Civil Resolution Tribunal ("CRT") over the determination of:

1. entitlement to no-fault accidents benefits paid or payable under the Insurance (Vehicle) Act and Insurance (Vehicle) Regulation;
2. whether an injury is a "minor injury" pursuant to the Insurance (Vehicle) Act and Minor Injury Regulation; and
3. liability and damages for personal injuries where the total damages are $50,000.00 or less.

The CRT was created in 2012 initially as a tribunal to decide strata disputes. In 2017 the CRT was granted further jurisdiction by the Provincial Government over small claims matters with a value of up to $5,000.00.

The constitutional challenge

The Trial Lawyers Association of British Columbia (the "TLABC") brought an action in the BC Supreme Court alleging that the legislative amendments to Civil Resolution Tribunal Act and Insurance (Vehicle) Act are unconstitutional and contrary to the Canadian Charter of Rights and Freedoms. The action^[1] essentially challenged the validity of two aspects of the legislative amendments:

1. The amendments to the Civil Resolution Tribunal Act that granted exclusive jurisdiction to the CRT to determine whether an injury is a minor injury and to determine liability and damages for motor vehicle accident claims for claims up to $50,000.00 on the basis that those provisions are unconstitutional as they represent an impermissible derogation from the exclusive superior court jurisdiction under Section 96 of the Constitution Act 1867; and
2. The minor injury cap, introduced by amendments to the Insurance Vehicle Act and enactment of the Minor Injury Regulation, on the basis that the provisions violate Section 15 of the Canadian Charter of Rights and Freedoms requiring that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination.

The first of these two issues was heard by Chief Justice Hinkson from August 10-14, 2020 and the judgment was handed down on March 2, 2021^[2]. The latter issue has yet to be decided by the Court.

The other Parties to the action are individual plaintiffs advancing claims arising from motor vehicle accidents who concede that their claims have a value of less than $50,000.00, the individual defendants to the actions advanced by those plaintiffs and the defendant, the Attorney General as adviser to the Government of British Columbia.

Chief Justice Hinkson, concluded the following in relation to the preliminary issues raised by the Parties:

1. The individual motor vehicle plaintiffs were entitled to private interest standing and the TLABC was granted public interest standing with respect to the Summary Trial application; and
2. The application was suitable to be heard by way of Summary Trial pursuant to Rule 9-7(2).

Chief Justice Hinkson noted that the three part test set out by the Supreme Court of Canada in the Residential Tenancies Act case^[3] is the applicable test for determining the constitutionality of the conferral of jurisdiction on an inferior court of tribunal. The test requires the Court to:

1. Consider, in light of the historical conditions existing at the time of confederation in 1867, whether the particular power or jurisdiction conferred on the tribunal conforms to the power or jurisdiction exercises by superior, district or county courts at the time of Confederation;
2. If the historical enquiry leads the conclusion that the impugned power is identical or analogous to a power exercised by s. 96 courts at Confederation, the Court must consider the function within its institutional setting to determine if it is a 'judicial' function based on the subject matter concerned; and
3. If the power or jurisdiction is exercised in a judicial manner, the Court must analyse the tribunal's function as a whole in order to assess whether the impugned function in its entire institutional context is in the nature of a s. 96 court power.

Applying that test to the amendments to the Civil Resolution Tribunal Act, his Lordship held that:

1. The jurisdiction conferred upon the CRT by the amendments are with respect to personal injury claims in tort. The superior courts in three of the four confederating colonies had exclusive jurisdiction over personal injury claims in tort at the time of Confederation;
2. The power conferred upon the CRT by the amendments to determine liability of those involved in motor vehicle accidents and the damages to which they are entitled, is a judicial power; and
3. The CRT's judicial functions pursuant to the amendments are neither subsidiary nor ancillary to any general administrative functions.

Accordingly, it was determined that Section 133(1)(a) and (b) of the Civil Resolution Tribunal Act granting exclusive jurisdiction to the CRT to determine whether an injury is a minor injury and to determine liability and damages for motor vehicle accident claims for claims up to $50,000.00 violate s.96 of the Constitution Act, 1867. Pursuant to Section 52(1) of the Constitution Act, 1982, those provisions were determined to be of no force and effect.

Section 16.1 of the Civil Resolution Tribunal, which required the superior courts to dismiss or stay certain proceedings that fall, or are alleged to fall, within the jurisdiction of the CRT, will be read down to apply solely to accident benefit claims under s.133(1)(a) of Civil Resolution Tribunal Act.

Consequences of the TLABC  judgment

The CRT, accordingly, does not have exclusive jurisdiction to decide whether an injury is a 'minor injury' pursuant to the Insurance (Vehicle) Act and Minor Injury Regulation and to determine liability and quantum for motor vehicle accident claims below $50,000.00 in monetary value.

The minor injury non-pecuniary damages cap remains in effect for injuries arising from motor vehicle accidents occurring after April 1, 2019 that are assessed to the 'minor'. However, plaintiffs seeking damages for injuries arising from motor vehicle accidents after April 1, 2019 may bring an action before the BC Supreme Court, whether the defendants allege the injuries are 'minor injuries' or not. The BC Supreme Court has jurisdiction to determine whether the injuries are minor and, accordingly, whether the minor injury cap applies to the non-pecuniary damages sought by the plaintiff.

The Attorney General, David Eby, has confirmed that his office will be appealing the TLABC decision. However, he indicated on March 8, 2021 that no decision had yet been made as to whether a stay of proceedings would be sought to enable the CRT to continue hearing 'minor injury' and other motor vehicle accident related personal injury claims pending the outcome of the appeal^[4].

The Charter challenge to the 'minor injury' cap remains an ongoing issue in the TLABC proceedings.