Update – in a split decision the below judgement was overturned by the BC Court of Appeal. Its ultimate fate may be decided by the Supreme Court of Canada.
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Today the BC Supreme Court issued reasons for judgement striking down various laws giving the Provincial Civil Resolution Tribunal jurisdiction over certain collision claims as unconstitutional. This is the second time in recent months that the BC government’s efforts to strip people’s rights in favour of ICBC have been declared in violation of their constitutional powers.
Section 133 of the Civil Resolution Tribunal Act reads as follows:
Claims within jurisdiction of tribunal for accident claims
133 (1) Except as otherwise provided in section 113 [restricted authority of tribunal] or in this Division, the tribunal has jurisdiction in a dispute, in respect of an accident, over a claim concerning one or more of the following:
(a) the determination of entitlement to benefits paid or payable under the Insurance (Vehicle) Act;
(b) the determination of whether an injury is a minor injury for the purposes of the Insurance (Vehicle) Act;
(c) liability and damages, if the amount, including loss or damage to property related to the accident but excluding interest and any expenses referred to under section 49 [order for payment of expenses], is less than or equal to the tribunal limit amount.
(2) For the purposes of this Act, the tribunal
(a) has exclusive jurisdiction in respect of claims described in subsection (1) (a) or (b) of this section, and
(b) is to be considered to have specialized expertise in respect of claims described in subsection (1) (c) of this section.
(3) For certainty, a person may make a request for tribunal resolution in more than one tribunal proceeding relating to an accident.
In today’s case (Trial Lawyers Association of British Columbia v. British Columbia (Attorney General)) The Chief Justice of the BC Supreme Court noted as follows in striking down subsections 133(1)(b) and (c):
402] In my view, it is unnecessary to address this argument. As I have determined that s. 133(1)(a) and (b) of the CRTA, which purports to empower the CRT to decide certain MVA claims, is unconstitutional, s. 16.1 is left with no application or meaning in relation to accident claims, except for accident benefits under s. 133(1)(a).
[403] As such, s. 16.1 should be read down insofar as it applies to accident claims, except for accident benefits under s. 133(1)(a). As explained above, s. 16.1(1) also applies to the other areas of jurisdiction assigned to the CRT (strata, small claims, and societies and cooperatives). Therefore, rather than strike down the entire provision, I have determined it should be declared invalid and of no force or effect only insofar as it applies to MVA claims, other than accident benefits under s. 133(1)(a).
[404] In light of this finding, it is unnecessary for me to decide whether s. 16.1 offends s. 96 of the Constitution Act, 1867 in the manner the plaintiffs argue.
VIII. REMEDY
[405] Section 52(1) of the Constitution Act, 1982 provides that any law that is inconsistent with the constitution is of no force and effect to the extent of the inconsistency.
[406] It is clear from the comments of Chief Justice Lamer, at 742 in MacMillan Bloedel, set out above, that part of a legislative scheme can be challenged. Chief Justice Lamer also made this clear in Schacter v. Canada, [1992] 2 S.C.R. 679 at 695–696 where he wrote:
A court has flexibility in determining what course of action to take following a violation of the Charter which does not survive s. 1 scrutiny. Section 52 of the Constitution Act, 1982 mandates the striking down of any law that is inconsistent with the provisions of the Constitution, but only “to the extent of the inconsistency”. Depending upon the circumstances, a court may simply strike down, it may strike down and temporarily suspend the declaration of invalidity, or it may resort to the techniques of reading down or reading in. In addition, s. 24 of the Charter extends to any court of competent jurisdiction the power to grant an “appropriate and just” remedy to “[a]nyone whose [Charter] rights and freedoms … have been infringed or denied”. In choosing how to apply s. 52 or s. 24 a court will determine its course of action with reference to the nature of the violation and the context of the specific legislation under consideration. A. The Doctrine of Severance The flexibility of the language of s. 52 is not a new development in Canadian constitutional law. The courts have always struck down laws only to the extent of the inconsistency using of the doctrine of severance or “reading down”. Severance is used by the courts so as to interfere with the laws adopted by the legislature as little as possible. Generally speaking, when only a part of a statute or provision violates the Constitution, it is common sense that only the offending portion should be declared to be of no force or effect, and the rest should be spared. Far from being an unusual technique, severance is an ordinary and everyday part of constitutional adjudication. For instance if a single section of a statute violates the Constitution, normally that section may be severed from the rest of the statute so that the whole statute need not be struck down. To refuse to sever the offending part, and therefore declare inoperative parts of a legislative enactment which do not themselves violate the Constitution, is surely the more difficult course to justify.
[407] I accept the submission of the motor vehicle defendants that generally, the court should not deal piece-meal with what the Legislature intended to be a “package” of legislative measures, especially when consideration must be given to any legislative response.
[408] The Attorney General contends that if there is a finding that one or both of ss. 133 and 16.1 of the CRTA, either in whole or in part offend s. 96 of the Constitution Act, 1867, the issue of remedy is not straightforward.
[409] The motor vehicle defendants submit that if the plaintiffs have met their burden, the appropriate remedy is to sever any offending provision from the rest of the amendments. They argue, and I agree, that I should not remove constitutionally valid areas of the CRT’s jurisdiction.
[410] The plaintiffs have conceded that subsection (a) of s. 133(1) of the CRTA is not, in isolation, unconstitutional. In my view, this subsection is severable. Likewise, the CRT’s jurisdiction to determine liability and damages for motor vehicle claims under $50,000 under subsection (c) is severable from its jurisdiction to determine whether an injury is a minor injury for the purposes of the Insurance (Vehicle) Act under subsection (b).
[411] As for the plaintiffs’ challenge to s. 16.1, the Attorney General contends that that aspect of the claim is based on a fundamentally different legal argument from the one made in relation to s. 133(1).
[412] Given these differences, the Attorney General says that the options for the court to find unconstitutionality could involve an array of different permutations of the various subsections, on different bases. The Attorney General argues that crafting an appropriate remedy in these circumstances will require consideration of complicated issues relating to severance, reading down, temporal application, and effect on existing decisions and processes of the CRT, as canvassed, at least in part as to severance and temporal application, in the written submissions of ICBC. The Attorney General submits that these questions are appropriately deferred for the time being, with opportunity for further submissions following release of the Court’s reasons for judgment on the main issues. In this way, the scope and basis for any finding of unconstitutionality made may inform the submissions.
[413] The Attorney General submits that at the present there is no disability on the part of the Supreme Court of British Columbia from hearing claims that arise from MVAs. In the result, the ability of both claimants and defendants in such cases to have their disputes resolved will not be impaired if the impugned sections of the legislation are struck down.
[414] I will therefore accede to the plaintiffs’ request, in part, and grant an order declaring that ss. 133(1) (b) and (c) of the CRTA are unconstitutional and of no force or effect. I also declare that s. 16.1 is unconstitutional and should be read down insofar as it applies to accident claims, except for determination of accident benefits under s. 133(1)(a). I decline to grant any order with respect to the Accident Regulations associated therewith.
