Canadian Underwriter

Appeal Court adds new twist to court battle over auto reforms

April 19, 2021   by David Gambrill

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B.C.’s Court of Appeal has temporarily suspended parts of a recent decision by the B.C. Supreme Court, which found that it is unconstitutional for the province’s Civil Resolution Tribunal (CRT) to determine minor injuries and decide claims of up to $50,000 in motor vehicle injury disputes.

The partial stay order is in effect until the Appeal Court decides the outcome of the B.C. Attorney General’s appeal from the Mar. 2, 2021 B.C. Supreme Court decision.

The upshot of the stay order is that, for motor vehicle accidents that happen between Apr. 1, 2019, and Apr. 30, 2021, people can either resolve their dispute through the CRT or by filing a claim in court if the dispute is about:

  • Whether an injury is a “minor injury”
  • Liability and personal injury and property damage of up to $50,000.

The legal dispute arose after B.C.’s provincial government introduced a package of auto reforms that took effect in April 2019. Among them, the province granted the CRT authority to determine: 1) entitlement to no-fault accident benefits; 2) whether an injury is a “minor injury;” and 3) liability and damages for personal injury of $50,000 or less.

Representing motor vehicle accident claimants, the province’s trial lawyers challenged the constitutional authority of the CRT to decide such matters. Among other things, they argued that this part of the province’s reform proposal denied the constitutional right of motor vehicle auto injury claimants to court access.

The B.C. Supreme Court agreed.

“[Section 96 of the Constitution Act, 1867] has been used to delineate the boundaries of jurisdiction between the superior courts and provincially created inferior courts and administrative tribunals,” as B.C. Chief Justice Christopher E. Hinkson wrote for the B.C. Supreme Court in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), released Mar. 2, 2021.

“The prohibition on vesting superior court jurisdiction in a provincially appointed court or tribunal is understood to safeguard the superior courts’ core jurisdiction, thereby preserving the courts’ power of review over decisions of provincial executive powers,” Hinkson wrote.

“Derogation of s. 96 powers to inferior courts or tribunals has the potential to erode the superior courts’ core jurisdiction. Section 96 prevents provinces from impermissibly conferring judicial decision-making power on new administrative bodies.

“One branch of s. 96 jurisprudence is devoted to the legal test for grants of jurisdiction to tribunals.”

After taking the court through the legal tests, Hinkson concluded that giving the CRT powers to decide entitlement to benefits paid or payable under the province’s Insurance (Vehicle) Act was unconstitutional, as was giving the CRT the ability to decide what constitutes a minor injury.

The B.C. Appeal Court stayed the ruling on Apr. 8, pending the outcome of the Attorney General’s appeal.


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