The current NDP government of Premier John Horgan has long made improving the financial situation at the provincially owned Insurance Corporation of British Columbia (ICBC), which Attorney General David Eby once described as a “dumpster fire,” a key priority. In 2019, legislation came into force that gave the provincial Civil Resolution Tribunal (CRT) jurisdiction to decide liability for “minor injuries” resulting from motor vehicle accidents where damages are less than $50,000.
The Trial Lawyers Association of British Columbia (TLABC) argued the scheme violated s. 96 of the Constitution Act, 1867, which precludes the provinces from creating courts or administrative tribunals with powers that parallel or mirror the “core jurisdiction” of a superior court. They argued it improperly gave the CRT a jurisdiction that was dominated by the superior courts at the time of Confederation. The challenge was successful, with B.C. Supreme Court Chief Justice Christopher Hinksen declaring the relevant provisions of the legislation to be of no force or effect (Trial Lawyers Association of British Columbia v. British Columbia (Attorney General) 2021 BCSC 348).
Trial Lawyers Association of British Columbia president Bill Dick
“[The jurisdiction of the CRT] is a jurisdiction directed at injuries that presumptively, but not irretrievably so, are limited to $50,000 in total compensation at this time, a sum not appreciably greater than the current jurisdiction of the Small Claims Court in British Columbia,” he wrote in the May 12 decision. “Clearly a broad and important field of tort claims and the compensatory regime in respect thereof is left to the superior courts in British Columbia. The law of negligence and compensation for damages suffered thereby will continue to be developed in the superior courts and will guide the CRT in the exercise of its jurisdiction under the impugned scheme.”
Chief Justice Bauman wrote the Supreme Court’s decision in Reference re Code of Civil Procedure (Que.), art.35, 2021 SCC 27, which was decided after the lower court’s trial judgment, provides a list of six factors that help determine whether a provincial scheme crosses the prohibited “line” outlined in the Constitution — and one of those factors is whether there is an important societal objective being advanced.
“It is a question of degree whether a province has overstepped in its ‘experiment’ to enhance its perception of better access to justice. And in that regard the court must defer to the wisdom of the legislature as to the efficacy of any particular experiment,” he wrote. “The province had identified that the existing system of compensating for minor personal injuries in tort was threatening the viability of the public insurer, ICBC, and equally the actual compensation recovered by the victims of these minor injuries. The legislative scheme before the court represents an integrated, comprehensive effort at reform directed at a social mischief starkly identified by the other branches of government.”
Chief Justice Bauman was joined by Justice Bruce Butler in his decision, which means that the CRT has exclusive jurisdiction to determine whether a claim is a minor injury, and will decide claims for liability and damages up to $50,000, for any car crash which happened on or after April 1, 2019. But Justice Elizabeth Bennett wrote a dissent saying she would have dismissed the government’s appeal. She wrote the CRT is a parallel court assigned to deal with personal injury from motor vehicle claims, and thus the core jurisdiction of the superior court has been infringed.
“In my view, the purported objective of ‘access to justice’ is erroneous,” she wrote. “That may well be an objective, but in my view, the main objective of alleviating the significant debt of ICBC without raising premiums (a politically unpopular step) is not a societal objective that justifies the transfer of power from the superior courts to the CRT.”
Mike Farnworth, B.C.’s minister of public safety and solicitor general, said in a statement the government was pleased with the court’s decision.
“Government and ICBC listened to British Columbians when they told us auto insurance was not affordable, and since forming government, we have taken intentional steps to lower costs and significantly improved care, recovery and wage loss benefits,” he said.
But TLABC president Bill Dick said he was concerned the decision sets a precedent for more significant government encroachment into the jurisdiction of the courts.
“What does this mean going forward to other areas of law outside of motor vehicle claims? Just recently the government introduced legislation to put traffic disputes out of the courts and into a tribunal-type environment, which would basically remove lawyers from the process,” he said. “We are concerned about this core jurisdiction issue and the erosion of the independent judiciary’s role in our province and whether this is a green light for more creative ways to take areas of law into tribunals like the CRT.”
Dick said he respects the concerns about access to justice raised by Chief Justice Bauman, but the TLABC feels strongly that people who have been injured or have disputes with ICBC should have access to an independent court which is not a government-run agency.
“We are going to be speaking to our counsel about the prospects of getting leave from the Supreme Court of Canada,” he said. “Certainly I think with a fairly strongly worded dissent and the potential for broader implications beyond British Columbia then there might be a real prospect that leave would be granted.”
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