Ian Mulgrew: Appeal court says it was OK for BC to point many lawsuits against ICBC to tribunal

Attorney General David Eby had assigned minor lawsuits against ICBC to the civil resolution tribunal

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The BC Court of Appeal’s chief justice has reversed his BC Supreme Court counterpart and ruled the province’s decision to end trials over minor vehicle-crash injuries was constitutional.

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Writing the split decision of a three-judge panel, Chief Justice Robert Bauman concluded the lower court’s chief justice, Christopher Hinkson, erred in finding the reform trespassed on the Supreme Court’s jurisdiction.

Hinkson had ruled Attorney General David Eby ignored the constitutional separation of powers between the provincial and federal governments by authorizing BC’s civil resolution tribunal, an online service for resolving small claims and similar disputes, to also deal with the auto-injury claims.

He put the boots to Eby’s rationale that the move would help douse the Insurance Corp. of BC’s financial dumpster fire, driven in part by sky-high litigation costs.

Eby insisted the radical change was necessary because too many such claims, 24,546 in 2019 alone, were clogging the courts, the vast majority of low-value but consuming expensive trial time.

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But Hinkson responded that for the previous five years, 80 per cent were under $50,000 and only 15 per cent were litigated.

“The claim that, under the CRT, the management of such claims will be cheaper is not supported by the statistics in evidence before me,” he said.

Bauman did not disagree, but countered: “I do not see the jurisdiction granted to the CRT by the scheme dramatically reducing the caseload of the Supreme Court either in simple numbers or in the breadth of remedies sought before it. … To be colloquial, the scheme here will not result in any ‘layoffs’ in the Supreme Court.”

Bauman pointed out that at the time of the Confederation, in two of the four provinces, injury lawsuits were shared between the superior courts appointed by Ottawa and the lower courts appointed by provincial governments.

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He found Eby’s reform did not invade the core jurisdiction of the Supreme Court as the primary guardian of the rule of law, playing a significant role in the development of the common law, and maintaining national unity.

Supported by Justice Bruce Butler, Bauman said that the current interpretation of Section 96 of the Constitution was considered more fluid than previously considered and permitted Eby’s change.

“In my view, the legislative scheme before the court represents an integrated, comprehensive effort at reform directed at a social mischief starkly identified by the other branches of government,” BC’s top judge explained.

The third member of the panel, Justice Elizabeth Bennett, dissented. She said the court was being turned into a parallel court that undermined the uniformity of the judicial system, impermissibly stepping on the core jurisdiction of the superior court.

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Bauman maintained that the BC Supreme Court retains significant involvement over personal injury and tort law, the court may also retain jurisdiction over the sort of motor vehicle claims involved, it plays a robust role on judicial review of CRT decisions, and the move furthers an important objective society.

The scheme is an experiment with a new form of access to justice, Bauman said.

“It is a jurisdiction directed at injuries that presumptively, but not irretrievably so, are limited to $50,000 in total compensation at this time, a sum not appreciably greater than the current jurisdiction of the Small Claims Court in British Columbia,” Bauman wrote.

He said decisions about the “broad and important field” and compensation guidelines are still left to the Supreme Court.

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“The law of negligence and compensation for damages suffered thereby will continue to be developed in the superior courts and will guide the CRT in the exercise of its jurisdiction.”

There is also a “safety valve,” he added — the Supreme Court retains jurisdiction over the ultimate determination of liability and damages.

“Its ‘essence’ as a superior court of general jurisdiction remains. I would allow the appeal.”

the Trial Lawyers Association of BCwhich launched the challenge, has not yet decided whether to appeal to the Supreme Court of Canada.

“This case is about when provincial governments can take jurisdiction away from constitutionally protected courts and give it to a tribunal that they have created and staffed,” it said in a statement.

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“What it means for British Columbians is whether they have a right to access an independent court or whether they are forced to instead seek justice from a government tribunal, including in cases where the government (in this case ICBC) is effectively a party,” it said.

The association’s “concern is that this judgment opens the door more widely to government encroachment on British Columbians’ ability to access justice in an independent court.”

Public Safety Minister Mike Farnworth is now responsible for ICBC, and COVID-19 and other factors have greatly improved its bottom line.

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