In last week’s case (Yousefi v. ICBC) the Applicant filed a CRT action to preserve the right to seek ICBC no fault benefits should any such benefits be denied. The CRT noted that such claims cannot be indefinitely paused and if they are not withdrawn must proceed to judgement were they will be dismissed if no past benefits are outstanding.
The CRT reached similar conclusions in two sister decision released at the same time (Shin v. ICBC and Bali v. ICBC)
In reaching such a disposition in this case Vice Chair Andrea Ritchie provided the following reasons:
Earlier this year the CRT was asked to set aside a “minor” injury settlement after the applicant discovered a disc bulge. The CRT refused to do so. Today reasons for judgement were published (Bajracharya v. Rahul) by the CRT inovlving a collision claim disputing the ‘minor’ injury designation. Despite this opportunity the CRT refused to dive into the topic finding that the Applicant was liable for the collision thus dismissing the claim and finding that the minor injury question did not need to be answered. In reaching this conclusion Vice Chair Andrea Ritchie provided the following reasons:
As discussed numerous times on this site BC law recognizes that if property is damaged by the wrong doing of another and if that property is then worth less even after all reasonable repairs have been made the ‘accelerated depreciation’ can be recovered against the at fault party.
In the first Accelerated Depreciation claim heard by BC’s Civil Resolution Tribunal such damages were awarded to the owner of a Porsche that was damaged in a collision.
In today’s case (Lai v. Leung) the Applicant’s vehicle was struck by the Respondent who admitted fault of the crash. The impact caused damages which cost over $6,500 to repair. The Applicant consulted with an appraiser who provided evidence that as a result the vehicle will be worth less on the open market. ICBC refused to recognize this. Both ICBC and the at fault motorist were sued but the tribunal noted that ICBC was not a correct party in such a dispute and the claim is properly brought against the at fault motorist with ICBC simply playing the role of their insurer.
In siding with the Applicant and accepting the expert opinion of the Fournier Auto Group Tribunal Member Trisha Apland provided the following reasons in ordering that $1,805 in damages for Accelerated Depreciation be paid:
In what I believe is the first case of BC’s Civil Resolution Tribunal addressing ‘minor’ injuries under the ever changing ICBC legal landscape reasons for decision were published earlier this month refusing to set aside a ‘minor injury’ settlement after the discovery of a disc bulge.
In the recent case (Naqvi v. ICBC) the applicant was involved in a collision in May, 2019. His doctor diagnosed him as suffering injuries to the right shoulder, right upper back, and left lower back radiating to the left hip with an optimistic prognosis to make full recovery. Believing these were caught by the minor injury regulation the application settled his claim for $6,890 which included non-pecuniary damages at the capped amount for such injuries.
Subsequent to settlement the applicant discovered he had a disc bulge in his spine and argued this new diagnosed injury falls outside of the ‘minor injury’ definition and accordingly sought to set the settlement asise. The CRT refused to allow this arguing a binding settlement was reached that was “not grossly unfair or unconscionable“. In refusing to allow the settlement to be set aside tribunal Vice Chair Andrea Richie provided the following reasons:
Reasons for judgement were recently published by BC’s Civil Resolution Tribunal (“CRT”) dismissing a claim for accelerated depreciation following a serious vehicle collision because the applicant named the wrong party.
In the recent case (Liang v. ICBC) the Applicant’s vehicle was involved in a collision where it sustained over $17,000 in damages. When the vehicle was repaired the Applicant believed its market value was compromised with an accelerated depreciation of several thousand dollars.
Instead of suing the at fault motorists she sued ICBC who presumably were their insurance company. The CRT dismissed the claim finding that the wrong party was sued. Legally it is true that ICBC would not be contractually liable to pay for accelerated depreciation to a plaintiff as that is a tort claim and such cases do need to be brought directly against negligent motorists, not their insurance company. Insurers do, however, pay damages for accelerated depreciation once their insured at fault motorist is held liable.
Interestingly the CRT refused to substitute the motorists in for ICBC finding that since the limitation period expired it would be prejudicial to do so. It is a bit difficult to follow this logic, assuming ICBC was the motorists insurer, as they are the ones who would ultimately be dealing with the claim in any event once the correct parties were named. The Applicant appeared reluctant to name the correct party at the outset which is equally hard to understand. It is worth noting that the BC Supreme Court can and regularly does allow the addition/substitution of parties after the expiration of a lawsuit and does so quite frequently. In any event below are the reasons Vice Chair Andrea Richie provided in dismissing the claim:
Reasons for judgement were published today by the BC Court of Appeal criticizing BC’s Civil Resolution Tribunal for an “unreasonable” and “flawed” analysis when reviewing a party’s request to be represented by a lawyer.
In today’s case (The Owners, Strata Plan NW 2575 v. Booth) the owners of a strata unit filed a dispute against their Strata Corporation asking for some repair costs to be paid. They filed their claim in BC’s Civil Resolution Tribunal (“CRT”) under their jurisdiction to resolve strata property disputes. The applicants then tagged on a claim seeking a further $25,000 in damages for “loss of enjoyment of life, threats, abuse, and stress” despite the CRT only having Small Claims authority of up to $5,000.
The Strata Corporation had insurance in place which would pay for a lawyer to represent them in the dispute. The CRT limits the use of lawyers and the CRT’s permission is required for a party to be represented in most cases. When the Strata asked for permission to be represented by lawyer this was denied with the CRT stating there was nothing ‘complex’ about the dispute giving rise to the ‘exceptional’ circumstances warranting a lawyer’s involvement. The CRT noted that the Strata could simply get legal advice behind the scenes instead of formally being represented by a lawyer.
The BC Court of Appeal overturned this decision finding the CRT flawed in their characterization of this dispute and their suggestion that legal advice only be utilized behind the scenes. The court noted there were complexities including issues as to whether the CRT could even hear such a dispute and hinted that Charter and Constitutional issues could be in play as well. In sending the matter back for a fresh determination the Court provided the following reasons:
Today BC’s Civil Resolution Tribunal published reasons for judgement dismissing a claim based on alleged emotional injury following a cat attack.
In today’s case (Kvinlaug v. Schuchort) the Applicant alleged that a cat owned by the Respondents attacked her dog. She argued “that she sustained emotional injury resulting from her dog being attacked“. The Tribunal dismissed the claim before even getting to a damages analysis on the basis that no liability could be proven under any of the known principles for fault following animal attacks.
In finding that cat attacks are fundamentally different than dog attacks under a negligence analysis Tribunal Member Sherelle Goodwin provided the following reasons:
Reasons for judgement were published today by BC’s Civil Resolution Tribunal (“CRT”) declining to hear a case dealing with fault for a vehicle collision.
In today’s case (Devendra v. ICBC) the Applicant was involved in a crash prior to April 1, 2019 (the date the CRT’s collision jurisdiction was significantly increased). ICBC found the applicant fully at fault for the crash. The Applicant sued ICBC and the other motorist involved arguing “ICBC refused to properly investigate the incident” and asked that his deductible and increased premiums be returned. The Applicant relied on the CRT’s small claims jurisdiction.
At the same time the other motorist sued the Applicant in the BC Supreme Court for alleged negligence causing injuries stemming from the same crash. In all the circumstances the CRT decided they were not the appropriate forum to adjudicate the applicants dispute and the issue of fault was better to be decided in the BC Supreme Court. In reaching this decision Tribunal Member Chad McCarthy provided the following reasons:
14. The respondents maintain that the applicant was 100% responsible for the accident. The applicant denies any liability. In light of the parties’ disagreement about liability, I find both the tribunal and the BC Supreme Court are effectively being asked to make a liability determination about the same motor vehicle collision. I find this could result in duplication of effort among decision makers, and could even result in different liability findings by the tribunal and the BC Supreme Court. Such outcomes are contrary to the tribunal’s mandate of efficient and fair decision-making.
In British Columbia the norm has long been that a collision victim could file a lawsuit against ICBC to preserve the right to future accident related medical/rehab benefits even if no past benefits were outstanding. The reason was simple, contractually ICBC Part 7 benefits could be payable over many years. However, if enough time passed without the need to access these benefits, the limitation period could expire thus thwarting the ability to claim future benefits if needed. A simple court filing could prevent this from occurring. The BC Supreme Court was reluctant to dismiss such claims understanding their role in preserving future benefits claims.
The BC Government has now diverted many ICBC disputes away from the courts and into a provincially created body known as the Civil Resolution Tribunal. In the first CRT decision I’m aware of addressing this practice the CRT ruled that such claims will not be accepted and will be dismissed.
In the recent case (Mu v. ICBC) the Applicant filed a ‘placeholder’ lawsuit to preserve her right to seek future ICBC benefits after being involved in a collision. No past benefits were outstanding. As ICBC looked to move the dispute forward the Applicant asked the CRT to “pause” the proceeding until such time as a dispute arose to future benefits. The CRT was not prepared to do so and ruled that under the new system placeholder claims to preserve limitation rights will not be allowed. In reaching this decision CRT Vice Chair Andrea Ritchie provided the following reasons:
British Columbia is not the first jurisdiction in Canada to take away the rights of the public in order to strengthen insurer profits. This has been done in other Provinces and legal challenges to injury cap laws have withheld constitutional challenge. BC, however, has gone further than simply capping damages and combined these with a system that forces ‘prescribed’ injury victims away from Court and into a Civil Tribunal. This combination leaves BC’s recent legislation vulnerable to legal challenge.
In the simplest of terms, when you are injured in a crash and sue the at fault motorist for your losses ICBC, BC’s government controlled monopoly auto insurer, can allege your injuries are “minor”. When they do so, even if the allegation is frivolous, your claim gets steered out of Court and into a Civil Tribunal. From there the Tribunal has the exclusive jurisdiction to decide if your injury is, in fact, “minor” (a term which encompasses many serious injuries). BC requires the injured party to bear the burden of proving the injury is not minor. If you can’t clear this hurdle you can’t go to Court unless the Tribunal also decides there is “a substantial likelihood that damages will exceed the tribunal limit“ (or in other very limited circumstances).
BC created a two tiered justice system. One for ‘minor‘ injury claimants and one for others. If you don’t have a “minor” injury you can choose where you wish to sue. If you have an alleged “minor” injury you have no choice. You have to go to the Tribunal and clear their barriers before being given permission to go to Court.
The gatekeeping function of who is forced into the Tribunal is based solely on the physical and mental characteristics of the claimant.
If you have something as benign as a hairline fracture in your finger you can go to court. If you have PTSD, a concussion, depression or another psychiatric condition you get funnelled to the Tribunal. Why is this a problem? Section 15 of Canada’s Charter of Rights and Freedoms protects individuals from discrimination based on “mental or physical disability“.
Section 15 of the Charter reads as follows (key words emphasised by me) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
BC’s system violates the plain language of this constitutional protection. The benefit of the law is going to Court. The barrier is a mental or physical disability used as the sole criteria to determine whose rights are taken away.
If a Court finds s. 15 is violated BC will have to prove this discrimination “can be demonstrably justified in a free and democratic society.” It stretches the imagination on how taking away the public’s judicial rights based on protected grounds in order to save an insurer money meets this test.
There can little doubt that the Tribunal system is designed to be unfair and affords lesser justice to litigants compared to the BC Supreme Court –
BC’s Attorney General admitted during debate that they designed this system to discourage people from having a lawyer and wanting lay litigants attending the Tribunal against an insurance “specialist“.
The Government carved themselves out of the Tribunal’s jurisdiction making them immune from lawsuits before it.
Tribunal cases have extremely curtailed appellate rights. These are limited to judicial review under the strictest standards compared to the more robust rights a litigant would have after a BC Supreme Court trial.
Tribunal adjudicators, unlike BC Supreme Court Justices, are not appointed by the Federal Government and do not enjoy the job security Justices do.
The Tribunal itself is designed by the BC Government, the same entity that controls ICBC and has been taking their profits for years.
Litigants before the Tribunal are afforded fewer rights in the realm of civil procedure.
This is not a case of Government creating a separate but equal route to justice for people with modest claims. This is not a case of Government giving people a choice between different forums. This is a case of Government using Charter protected grounds to force individuals with prescribed mental and physical injuries to overcome further obstacles before being allowed access to Court.
BC’s new laws come into force on April 1, 2019. A Charter challenge will be right on its heels.
When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.
This blog is authored by personal injury and ICBC Claims lawyer Erik Magraken. Use of the site and sending or receiving information through it does not establish a solicitor/client relationship. The views expressed and the content provided on this blog is for nonprofit educational purposes. It is not, and is not intended to be, legal advice on any specific set of facts. The use of this website does not create a solicitor-client (attorney-client) relationship. If you require legal advice, you should contact a lawyer directly.