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.
- The Tribunal limits the expert evidence litigants can use and further limits the cost recovery available for hiring experts.
- 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.