The Trial Lawyers' Association of B.C. says that a court ruling "raises serious legal questions" about the future of no-fault provisions (a.k.a. enhanced care) in ICBC's vehicle-insurance system.
On March 2, B.C. Supreme Court Justice Christopher Hinkson ruled that the provincial government could not refer accident claims worth less than $50,000 to the Civil Resolution Tribunal rather than the courts.
Civil Resolution Tribunal members are appointed by the B.C. government and adjudicate cases filed online.
"This is all about access to justice," TLABC president Kevin Gourlay said in a news release. "If ICBC wrongly tells you that you were at fault for an accident or wrongly tells you that your injuries are minor, you should have access to an independent court."
The TLABC joined plaintiffs Philip Whealy, Khadija Ramadhan, Sahra LIedtke, and Melissa Rondpre in a constitutional challenge against amendments to the Civil Resolution Tribunal Act and the Insurance (Vehicle) Act and regulations under this legislation.
At the heart of their case was a claim 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.
"Derogation of s. 96 powers to inferior courts or tribunals has the potential to erode the superior courts' core jurisdiction," Hinkson wrote. "Section 96 prevents provinces from impermissibly conferring judicial decision-making power on new administrative bodies."
The Ministry of Attorney General relied on evidence from Université Laval in Quebec City history professor Donald Fyson to argue that the tribunal's minor-injury classification was "novel"—and unlike any other statutory provisions created since Confederation.
Between 1841 and 1867, there were 39 nonfatal personal-injury cases, including 27 in Upper Canada, 11 in Lower Canada, none in New Brunswick, and one in Nova Scotia.
Fyson maintained that personal-injury claims "formed no significant part of the business of any of the courts of the two Atlantic colonies, whether superior, intermediate or lower courts".
"In my view," 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."
Moreover, Hinkson added, the "Attorney General appears to have conflated this legal concept with a factual argument about the prevalence of personal injury claims before Confederation".
In 2019, Attorney General David Eby described the transfer of minor-injury cases to the Civil Resolution Tribunal as a "very significant change".
At the time, a nonscientific survey on Straight.com showed that 70 percent of respondents favoured this move.
It was part of a package of measures intended to reduce ICBC costs, which also included limiting the number of expert-witness reports to support legal claims.
After the 2020 election, Public Safety Minister and Solicitor General Mike Farnworth replaced Eby as the minister responsible for ICBC.
On February 2, the B.C. government announced ICBC customer rebates averaging $190 as a result of the Crown insurer's lower claim costs during the pandemic.
At the time, the province stated that "product reform", including referring minor-injury claims to the Civil Resolution Tribunal, has put ICBC in a "strong financial position", enabling lower rates starting in May.
According to ICBC, customers with full basic and optional coverage will save an average of 20 percent on annual premiums.