Hinkson Decision: Preserving the Adjudicative Power of the Court, and What It Means to All British Columbians
In a recent judgment in the Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2021 BCSC 348, the issue before Chief Justice Hinkson was the constitutionality of legislation enacted by the NDP government, which, on April 1, 2019, moved the venue for deciding the value of motor vehicle accident claims from the courts to the BC Civil Resolution Tribunal (“CRT”).
The challenge was brought by the Trial Lawyers Association of B.C. whose mandate it is to protect the rights of individual British Columbians, including the right of access to the superior courts and the preservation of those courts’ independence and historic functions.
The CRT existed prior to April 2019, but did not have jurisdiction to deal with motor vehicle accident claims. Starting April 1, 2019, the NDP amended the CRT’s founding Act to give it jurisdiction over:
- (a) whether a person’s entitlement to no-fault accident benefits were paid or payable;
- (b) whether a person’s injury was a “minor injury”, resulting in a cap; and,
- (c) whether a person was liable for the accident and the amount of damages for claims of $50,000 or less.
These amendments came into force April 1, 2019. At the same time, the NDP government set out amendments to the Insurance (Vehicle) Act and created a Minor Injury Regulation, which set a cap of $5,500 for compensation for pain and suffering on injuries that fall within the definition of “minor injury” – and this includes chronic pain, concussion, and ongoing psychological injuries. Under this scheme, a decision by the CRT that an injury was minor triggers the $5,500 Cap. Follow this link to our page on the minor injury cap.
The issue before the Chief Justice was whether removing the decision making from the courts and giving it to the CRT was constitutional. In a lengthy and well-reasoned decision, the Chief Justice found this legislation was unconstitutional, meaning that all people injured in motor vehicle accidents after April 1, 2019, will be able to have their case decided by a judge appointed by the Federal Government and not by an appointee of the British Columbia government, who has a financial stake in the decision.
The Insurance Corporation of British Columbia (ICBC) was created by the NDP government in 1973 and is in the business of insuring motor vehicles registered in B.C. As such, very nearly all disputes relating to motor vehicle accidents in B.C. are defended by ICBC. In 2018, there was much in the media about the financial state of ICBC being akin to a dumpster fire and the legislative changes in 2019 followed with the NDP saying that ICBC’s financial state required these legislative changes.
In his decision, the Chief Justice was asked to review significant statistical evidence of the increase in high volume / low-value claims ($50,000 or less) and he found that:
[325] I find these figures relatively unhelpful. The Attorney General’s evidence also shows that between 2015 and 2019, only 0.2% to 0.6% of the total claims that resolved by settlement or judgment went to trial (on average 202 per year). In other words, for every 10,000 MVA tort claims that resolve, on average only 40 went to trial.
In reviewing the statistical evidence put forth by the Attorney General, the Chief Justice found that:
[353] The claim that under the CRT the management of such claims will be cheaper is not supported by the statistics in evidence before me. However that is not a matter for me to judge, as it is for the Legislature to determine how public funds are to be spent.
The Chief Justice found that the CRT’s powers in this scheme are far more significant than any scheme to provide access to justice for low-value motor vehicle claims. Instead, the Chief Justice found that:
[372] I am not persuaded that the CRT’s power to make determinations under s. 133 of the CRTA is necessarily incidental to the Legislature’s goal of enhancing access to justice for low-value MVA claims. In my opinion, the CRT’s powers are far more significant and are part of the scheme to transfer adjudicative power over tort claims from the Supreme Court to the administrative tribunal (the CRT).
In summary, Chief Justice Hinkson declared that s.133(1)(b) and (c) of the CRT’s founding Act, which empowered the CRT to decide certain MVA claims (Minor Injury), is unconstitutional and of no force or effect and s. 16.1 is unconstitutional and should be read down only insofar as it applies to MVA claims except for determination of accident benefits under s.133(1)(a).
People involved in a motor vehicle accident after April 1, 2019, may have believed they had to submit to the decision-making of the CRT as to any fault on their part and whether their injuries fell within the definition of “minor” and therefore subject to the Minor Injury Cap. This is no longer the case. The Minor Injury Cap remains but a determination of whether your injury fits within that definition will be made by a justice of the British Columbia Supreme Court.
The law changed again on May 1, 2021 and the BC NDP’s No Fault Insurance scheme came into effect. Check back with us as more becomes known about this new legislation and what affect it will have on persons injured in motor vehicle accidents in B.C.
