We have written in the past about the tribunals in British Columbia and Ontario that manage some aspects of insurance disputes involving motor vehicle accident (MVA) personal injuries. BC’s tribunal has run into repeated constitutional difficulties, while Ontario’s has avoided this so far.
British Columbia’s Civil Resolution Tribunal (CRT) was set up in 2016 to remove some small claims from the provincial court and some disputes from the BC Supreme Court. In 2019, the Attorney-General also moved minor personal injury claims out of court and into the CRT. The CRT’s process is online and curtails the use of lawyers. The province appoints the adjudicators. The government-owned Insurance Commission of British Columbia (ICBC) projected $390 million in savings by moving minor claims from courts to the CRT.
In 2021 the Chief Justice of the Supreme Court of British Columbia struck down key provisions of the Civil Resolution Tribunal Act. This was the second time in 18 months that the government’s ICBC reforms were found unconstitutional. Justice Christopher Hinkson ruled that the provincial government could not refer accident claims worth less than $50,000 to the CRT rather than to the courts.
The BC government claimed that the Civil Resolution Tribunal Act vests a judicial function in the tribunal, contrary to section 96 of the Constitution Act, 1867, which preserves this role for superior courts. The Ministry of the Attorney General relied on evidence from history professor Donald Fyson of Université Laval in Quebec City to argue that the tribunal’s minor-injury classification was “novel” and unlike any other statutory provisions created since Confederation.
The Court declared it is unconstitutional for the government to reassign the determination of accident claims from the courts to its own tribunal. Justice Hinkson wrote, “… the Attorney General’s arguments fail to properly grasp the concept of novelty. It is my view that jurisdiction can only be ‘novel’ if there is a truly new regime of rights and entitlements requiring determination, or if jurisdiction historically exercised by the superior courts is no animated by a distinctly different organizational or operational principle or philosophy.”
According to Kevin Gourlay, President of the Trial Lawyers Association of BC: “This is all about access to justice. If ICBC wrongly tells you that you were at fault for an accident or … that your injuries are minor, you should have access to an independent Court. This unconstitutional law created an online government tribunal into which ICBC intended to force certain accident claims. This ruling ensures your right to access a court if ICBC makes an incorrect decision affecting your rights … by declaring that the government cannot give the power to decide accident claims to its own online tribunal.”
This ruling also raises legal questions about the government’s decision to impose mandatory ICBC no-fault insurance on British Columbians because the CRT features prominently in the no-fault scheme.
In Ontario, the Licence Appeal Tribunal (LAT) has been handling the Automobile Accident Benefits Service (AABS) since 2016. Before then, the Financial Services Commission of Ontario (FSCO) oversaw the Statutory Accident Benefits Schedule (SABS). LAT awards costs only when a party acts unreasonably, frivolously, or in bad faith.
In 2017 personal injury lawyer Joseph Campisi launched a constitutional challenge to two MVA sections in the Insurance Act. The Applicant challenged section 267.5(1) limiting the pre-trial recovery of lost income to 70% of gross income, and section 280 granting sole jurisdiction to the LAT to resolve SABS disputes (Campisi v Ontario, 2017 ONSC 2884). The Applicant, through counsel, argued these sections of the Insurance Act violate sections 15 (1) and 7 of the Charter of Rights and Freedoms. He also argued that giving comprehensive jurisdiction to the LAT to decide SABS disputes and eliminating the ability of people to sue in the Superior Court over SABS disputes violates section 96 of the Constitution Act, 1867.
Mr. Justice Belobaba dismissed the application, holding that the Applicant did not have standing, one reason being that he was not injured in an MVA. The judge held that neither of the provisions breaches the Charter and that LAT’s dispute resolution jurisdiction did not violate the Constitution. He found that neither the statutory limitation on the recovery of tort damages under section 267.5(1), nor the elimination of the right to sue in court under section 280 of the Insurance Act, deprive an accident victim of their right to life, liberty, and security of the person. He also found that section 280 did not violate the constitution: a Supreme Court of Canada case had held that new powers or jurisdiction that were not within the power of the superior courts at the time of confederation are not at the core of jurisdiction protected under section 96. The judge found that the LAT is “necessarily incidental” to the policy goal of providing speedy no-fault benefits and a quick and efficient dispute system.
This decision leaves room for an accident victim to challenge the constitutionality of the Insurance Act personally, but the case law applied by Justice Belobaba suggests that even if an MVA victim has standing to bring an application, the outcome could be the same.
We hope that the information we provided was helpful. If we can answer any other questions that you might have about Litigation Loans, please contact us at 1-877-342-9590 or email our President, Jeffrey Gottheil at jgottheil@nudorra.com . We look forward to speaking with you soon.
