From 10 to 14 August 2020, a noteworthy five-day summary trial took place before Chief Justice Hinkson of the BC Supreme Court, following which he reserved judgment. The Trial Lawyers Association of BC (TLABC) and several individuals with personal injury claims challenged the Province’s April 2019 legislative reforms. Those reforms expanded the exclusive jurisdiction of the Civil Resolution Tribunal (CRT) to include the determination of whether an injury is a “minor injury” for the purposes of the Insurance (Vehicle) Act and empowered the CRT to adjudicate liability and damages for motor vehicle accident claims under $50,000.

The TLABC submitted that the reassignment of a “slice of tort law” to the CRT violates s. 96 of the Constitution Act,1867 and should be struck as unconstitutional. Section 96 provides that the Governor General shall appoint the judges of the superior court in each province. The TLABC argued that the CRT is in effect a “shadow” superior court, created by the Legislature.

Resolution of the TLABC’s claim turns in large part on the application of the Supreme Court of Canada’s three-part test set out in the 1979 Residential Tenancies Act Reference for determining whether legislation impermissibly grants jurisdiction to administrative tribunals. The first step asks whether the subject matter jurisdiction conferred on the tribunal was exercised exclusively by superior courts at Confederation. The second step asks whether the impugned function in question is “judicial”, and the third step scrutinizes whether the judicial power is the sole or central function of the body that exercises it or whether it is “transformed” in its institutional setting

The TLABC characterized the CRT as a “shadow s. 96 court” even if it was a “newfangled” way of approaching personal injury tort disputes. The TLABC maintained that such disputes were exclusively adjudicated by superior courts at the time of Confederation in 1867 and emphasized that the CRT’s evidentiary rules compromise the fairness of the tribunal process. This alleged unfairness is compounded further by the judicial deference mandated on applications to review tribunal decisions under the Judicial Review Procedure Act. The result, argued by the TLABC, is that even if an unsatisfied claimant seeks the Supreme Court’s review of the CRT’s disposition of their claim, the Court’s superintending power cannot be thoroughly exercised due to the inadequate evidentiary record.

The defendant Attorney General of BC defended the impugned provisions and challenged the TLABC’s public interest standing. He argued that the TLABC has a pecuniary interest in maintaining the status quo of MVA litigation which could result in a conflict of interest between the members of the TLABC and the individual plaintiffs named in the proceeding. The AGBC also rejected the TLABC’s argument that tort law was exclusive to superior courts at the time of Confederation, submitting that the CRT’s jurisdiction to determine what constitutes a “minor injury” with its consequential damages cap of $5,500 is a statutory construct, and hence a novel judicial exercise which did not exist in 1867. The AGBC spoke to the inefficiency of the current monopolistic insurance regime in BC, in which approximately 24% of ICBC expenditures are funneled towards legal costs, rather than being paid out directly to accident victims, and that ICBC average payouts for minor injuries have risen from approximately $8,000 in 2000 to $30,000 in 2016. The AGBC submitted that the CRT offers a simplified procedure that facilitates self-representation by claimants and expedient settlements for minor injuries, with a concurrent enhancement of Part 7 benefits.

The defendant ICBC tendered expert opinion evidence from Professor Paul Daly, a leading academic on administrative law in Canada, Professor Richard Susskind, a world leading expert on technology and online public dispute resolution, and Richard Swadden, a Vancouver-based lawyer with extensive experience in insurance litigation. ICBC began its submissions by arguing that the predominant function of the CRT is not adjudicative, and that the fact that it is a “newfangled” way of resolving what were otherwise MVA disputes subject to litigation in the Supreme Court was one of its saving graces and one that supported its constitutional validity.

One of the critical questions in the trial was to determine whether (assuming that the CRT met the three-part Residential Tenancies test), the grant of exclusive jurisdiction to the CRT nevertheless impermissibly removed one aspect of the superior courts’ “core jurisdiction”. In this regard, the TLABC argued that this core encompassed the superior courts’ “book of business” which it equated to its longstanding jurisdiction to adjudicate MVA disputes. ICBC countered that given that the Legislature could actually create a pure no fault system, some restrictions on the ability of the superior court to adjudicate MVA claims under $50,000 was not an encroachment on its core. The defendants tendered statistical evidence demonstrating that currently, only 1-2% of the motor vehicle accident claims filed in the Supreme Court actually go to trial, and of those that do, the final judgments rarely if ever fall within the CRT’s monetary limit of $50,000.

ICBC emphasized that, in any event, section 16.2 of the Civil Resolution Tribunal Act simultaneously offers an important “safety valve” for claimants who don’t believe they can get justice from the CRT to seek recourse through a transfer of proceeding to the Supreme Court. Although ICBC did not concede that there was a constitutional requirement for this safeguard, it asserted that section 16 leaves the superior court with ample concurrent jurisdiction to adjudicate claims where it is not in the interest of justice and fairness for the CRT to do so.

The TLABC argued that it was nonsensical to suggest that a plaintiff should have to persuade the Supreme Court that it was in the interest of justice to maintain jurisdiction when the Supreme Court is the very font of such justice. ICBC countered that there was an important distinction between, on the one hand having to persuade the Supreme Court that it was in the interest of justice to hear the case – which is not what the Act requires- and, on the other, having to persuade the Supreme Court that it was not in the interest of justice and fairness for the CRT to hear the case – which is what the Act requires. ICBC also argued that the CRT enhanced the public’s access to justice whereas TLABC’s position was that it impeded it.

The overall legislative amendments of which the CRT is an important component reflect a move from a pure litigation-oriented model to a care-based model by the Province, with a focus on simplifying and streamlining the resolution of motor vehicle accident related claims by deploying the latest technology. In that respect, the CRT is innovative – it was described by Professor Susskind as the world leader in online public dispute resolution – and provides a clear reminder that times have radically changed since 1867.

It is apparent in the ongoing COVID pandemic that anachronistic aspects of the conventional legal system must be updated to address the zeitgeist of the 2020s, which demands flexibility in the era of social distancing, and in which legal professionals and lay litigants alike are now learning how to conduct most communications and day to day duties from a safe distance, through a computer screen. The challenge for Chief Justice Hinkson will be to decide how much newfangled innovation is permissible in a legal system, grounded in constitutional principles, that has tended to cling to its traditional ways of delivering justice.

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