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BC Court Of Appeal Splits on Civil Resolution Tribunal Constitutionality

Just over a year ago the BC Supreme Court struck down various laws giving the Provincial Civil Resolution Tribunal jurisdiction over certain collision claims as unconstitutional.

Today the BC Court of Appeal overturned the judgment but in doing so the highest court in the province was split.

The majority found that the law was in bounds and granted the Government’s appeal.  Madam Justice Bennett issued dissenting reasons finding that the Province was undermining the uniformity and unity of the Canadian judicial system.  Given the split there is a good chance all the legal dust over the fate of this questionable law will not settle until the Supreme Court of Canada weighs in.  Time will tell if the appeal is headed there.

The full reasons can be found here (TLABC v. British Columbia) with the Court publishing the following headnote summarizing the majority and dissenting opinions:

In 2019, legislation came into force that granted to the Civil Resolution Tribunal (CRT) jurisdiction to decide liability and damages for minor injuries (a statutory category) resulting from motor vehicle accidents. Aspects of this jurisdiction are exclusive and others are shared with the Supreme Court of British Columbia. In brief, the CRT was given exclusive jurisdiction to classify an injury as a minor injury. This triggers a presumption that the associated damages are below the tribunal limit amount ($50,000). The CRT has presumptive, but not exclusive, jurisdiction to adjudicate the liability and damages when the presumption that the damages will be below the tribunal limit amount has not been rebutted. The legislation directs the Supreme Court to dismiss or stay matters that are within the jurisdiction of the CRT unless it would not be in the interests of justice and fairness. Parties may apply for judicial review of decisions of the CRT, with decisions relating to liability and damages being reviewed on roughly the appellate standard of review.

The Trial Lawyers Association of British Columbia and several plaintiffs in motor vehicle claims challenged the scheme, arguing in part that the grant of jurisdiction to the CRT offended s. 96 of the Constitution Act, 1867. They argued that the scheme impermissibly granted to the CRT a jurisdiction that was dominated by the superior courts at the time of Confederation. The challenge was successful, with the judge declaring the relevant provisions of the legislation to be of no force or effect.

The Attorney General of British Columbia appeals, as do several defendants in motor vehicle claims. They argue, among other things, that the judge erred in his approach to the historical inquiry regarding the jurisdiction of inferior and superior courts at Confederation. Further, they argue that the grant of jurisdiction does not offend the core-jurisdiction test recently formulated by the Supreme Court of Canada in Reference re Code of Civil Procedure (Que.), art. 35, 2021 SCC 27.

Held: Appeal allowed. First, the historical inquiry reveals that at Confederation, in at least two of the four confederating provinces, jurisdiction over ‘personal injury claims in tort’ (whether or not considering related property damage claims) was generally shared between inferior and superior courts. Second, the impugned scheme does not impermissibly invade the core jurisdiction of the Supreme Court of British Columbia. The core-jurisdiction test is intended to protect the essential character of superior courts: as primary guardians of the rule of law, playing a significant role in the development of the common law, and maintaining national unity. Highlighting only some of the factors: the Supreme Court of British Columbia retains significant involvement over personal injury and tort law generally; there are several avenues for the Supreme Court to retain jurisdiction over the sort of motor vehicle claims at issue in this litigation; the Supreme Court plays a robust role on judicial review; and the scheme was enacted to further an important societal objective. 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 impugned scheme is an experiment with a new form of access to justice and represents an integrated comprehensive effort at reform directed at a social mischief identified by other branches of government.

Dissent: Bennett J.A. would dismiss the appeal. The reasons of Chief Justice Bauman are concurred with regarding the application of the Residential Tenancies test and the cross-appeal. The basis for dismissing the appeal lies in the application of the core jurisdiction test. The impugned sections of the CRTA infringe s. 96. The CRT has been established as a parallel court assigned to deal with personal injury from motor vehicle claims. As a result, the unity and uniformity of the Canadian judicial system is undermined, and the core jurisdiction of the superior court has been impermissibly infringed.