BC Supreme Court rules parts of Civil Resolutions Tribunal Act Unconstitutional

A recent decision of the British Columbia Supreme Court has struck down sections of the province’s Civil Resolution Tribunal Act, S.B.C. 2012, c. 25 (CRTA). In Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2021 BCSC 348, the Honourable Chief Justice Hinkson dealt with the issue of whether the grant of jurisdiction over certain kinds of motor vehicle accident claims to the Civil Resolution Tribunal (the “Tribunal”).

The Tribunal was created by the CRTA, which was amended in 2015 and brought into force on July 13, 2016. The Tribunal originally had jurisdiction over matters dealing with strata property disputes, and later over small claims matters up to $5,000.

On April 1, 2019, the provincial government introduced a package of reforms consisting of reforms to the CRTA, as well as the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231, and the Insurance (Vehicle) Regulation, B.C. Reg. 447/83, as well as two new regulations: Accident Claims Regulation, B.C. Reg 233/2018 and the Minor Injury Regulation, B.C. Reg 234/2018. The scheme created by these amendments gives the Tribunal, in part, jurisdiction over motor vehicle accident (“MVA”) claims effective April 1, 2019. Specifically, section 133(1) of the CRTA gave the Tribunal jurisdiction over the determination of:

(a) Entitlement to no-fault benefits paid or payable under the Insurance (Vehicle) Act;

(b) Whether an injury is a “minor injury” under the Insurance (Vehicle) Act; and

(c) Liability and damages for personal injury of $50,000 or less.

The amendments to the Insurance (Vehicle) Act also included a new cap on the amount of non-pecuniary damages (damages for pain and suffering) that may be awarded in claims based on minor injuries.

The Trial Lawyers Association of British Columbia (The “TLABC”) challenged the constitutional validity of the amendments. The TLABC claimed the amendments to the CRTA are an impermissible derogation from exclusive superior court jurisdiction under s. 96 of the Constitution Act, 1867, and would deny MVA victims their constitutional right of access to the courts. The TLABC argued that the impugned provisions of the CRTA vests a judicial function in the Tribunal which was historically within the exclusive jurisdiction of the superior courts. They argued that because the members of the Tribunal are appointed by the provincial Cabinet, and not by the Governor General, the Tribunal represents an unconstitutional encroachment upon the constitutional functions of the federally-appointed judiciary.

In striking down (b) and (c) above, the court applied what is called the “Residential Tenancies Test”, stemming from a 1981 Supreme Court of Canada decision. This test involves three steps. First, it must be determined whether the power or jurisdiction conforms to the power or jurisdiction exercised by superior, district or county courts at the time of Confederation. Second, the test asks whether the function itself is different when viewed in that setting. Can the function still be considered a ‘judicial function’. Third, the test asks the court to review the tribunal’s function as a whole in order to appraise the impugned function in its entire institutional context.

In answering the first part of this test, the court concluded that the jurisdiction that the impugned legislation purported to transfer to the Tribunal is jurisdiction that is analogous to the jurisdiction that was exercised by superior courts in three of the four confederating provinces at the time of Confederation. With respect to the second step, the court concluded that the impugned legislation purported to grant to the Tribunal a judicial function.

The court noted that between fiscal years 2014 and 2019, the number of tort actions filed in this province’s Supreme Court and served on ICBC grew by 48 per cent. However, between 2015 and 2019, only about 0.4 per cent of total claims resolved proceeded to trial, an average of 202 per year. For every 1,000 MVA tort claims that resolve, only about 4 proceed to trial.

With respect to the third step, the court held that the judicial powers conferred on the Tribunal under s. 133 of the CRTA are not necessarily incidental to the legislature’s purported policy goals of enhancing access to justice and preserving the sustainability of the public automobile insurance system. The plaintiffs conceded that subsection (a) of s. 133(1) of the CRTA was not, in isolation, unconstitutional. This particular subsection was severable.

The remedy ultimately granted was an order declaring that ss. 133(1)(b) and (c) of the CRTA are unconstitutional and of no force or effect. The court also declared that another section, s. 16.1, was unconstitutional and should be read down insofar that it applied to MVA claims, except for determination of accident benefits under s. 133(1)(a).