Major Roadblock In BC's Minor Injury Reforms

• Published date: 15 March 2021
• Subject Matter: Insurance, Litigation, Mediation & Arbitration, Insurance Laws and Products, Personal Injury
• Law Firm: Gowling WLG
• Author: Mr Rory McMullan

Background

Effective April 1, 2019, the BC provincial government introduced a package of legislative reforms addressing BC motor vehicle accident claims.

The amendments to the Insurance (Vehicle) Act included a new cap on the amount of non-pecuniary damages that may be awarded in claims where one or more of the injured party's injuries were agreed to be, or assessed as being, a "minor injury". "Minor injury" is defined in both the Insurance (Vehicle) Act and Minor Injury Regulation. The minor injury cap amount is $5,500.00 for minor injuries arising from accidents that occurred between April 1, 2019 and March 31, 2020, and $5,627.00 for accidents that occurred after April 1, 2020.

The amendments made to the Civil Resolution Tribunal Act granted jurisdiction to the BC Civil Resolution Tribunal ("CRT") over the determination of:

1. entitlement to no-fault accidents benefits paid or payable under the Insurance (Vehicle) Act and Insurance (Vehicle) Regulation;
2. whether an injury is a "minor injury" pursuant to the Insurance (Vehicle) Act and Minor Injury Regulation; and
3. liability and damages for personal injuries where the total damages are $50,000.00 or less.

The CRT was created in 2012 initially as a tribunal to decide strata disputes. In 2017 the CRT was granted further jurisdiction by the Provincial Government over small claims matters with a value of up to $5,000.00.

The constitutional challenge

The Trial Lawyers Association of British Columbia (the "TLABC") brought an action in the BC Supreme Court alleging that the legislative amendments to Civil Resolution Tribunal Act and Insurance (Vehicle) Act are unconstitutional and contrary to the Canadian Charter of Rights and Freedoms. The action¹ essentially challenged the validity of two aspects of the legislative amendments:

1. The amendments to the Civil Resolution Tribunal Act that granted exclusive jurisdiction to the CRT to determine whether an injury is a minor injury and to determine liability and damages for motor vehicle accident claims for claims up to $50,000.00 on the basis that those provisions are unconstitutional as they represent an impermissible derogation from the exclusive superior court jurisdiction under Section 96 of the Constitution Act 1867; and
2. The minor injury cap, introduced by amendments to the Insurance Vehicle Act and enactment of the Minor Injury Regulation, on the basis that the provisions violate Section 15 of the Canadian Charter of Rights and Freedoms requiring that every...