COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Trial Lawyers Association of British Columbia v. British Columbia (Attorney General),

 

2022 BCCA 163

Date: 20220512

Dockets: CA47320; CA47332

Docket: CA47320

Between:

Trial Lawyers Association of British Columbia, Philip Whealy,
Khadija Ramadhan, Sahra Leidtke and Melissa Rondpre

Respondents/

Appellants on Cross Appeal

(Plaintiffs)

And

Attorney General of British Columbia

Appellant/

Respondent on Cross Appeal

(Defendant)

And

Robert Dockrill, Judith Dockrill, Sukhjinder Singh Bath, 0731534 B.C. Ltd., Wendy June Fraser, Create Fun Event Company Ltd. and
Emmanuel Martin Blackburn

Respondents

(Defendants)

- and -

Docket: CA47332

Between:

Trial Lawyers Association of British Columbia, Philip Whealy,
Khadija Ramadhan, Sahra Leidtke and Melissa Rondpre

Respondents/

Appellants on Cross Appeal

(Plaintiffs)

And

Attorney General of British Columbia

Respondent

(Defendant)

And

Robert Dockrill, Judith Dockrill, Sukhjinder Singh Bath, 0731534 B.C. Ltd., Wendy June Fraser, Create Fun Event Company Ltd. and
Emmanuel Martin Blackburn

Appellants/

Respondents on Cross Appeal

(Defendants)

Before:

The Honourable Chief Justice Bauman

The Honourable Madam Justice Bennett

The Honourable Mr. Justice Butler

On appeal from:  An order of the Supreme Court of British Columbia,
dated March 2, 2021 (Trial Lawyers Association of British Columbia v.
British Columbia (Attorney General)
, 2021 BCSC 348, Vancouver Docket S193931).

Counsel for the Attorney General of
British Columbia:

S.A. Bevan

M.A. Witten

Counsel for Trial Lawyers Association of British Columbia, Philip Whealy,

Khadija Ramadhan, Sahra Leidtke and Melissa Rondpre:

K.M. Stephens

A. Calvert

Counsel for Robert Dockrill, Judith Dockrill, Sukhjinder Singh Bath, 0731534 B.C. Ltd., Wendy June Fraser, Create Fun Event Company Ltd. and
Emmanuel Martin Blackburn:

A.M. Gunn, Q.C.

R.W. Parsons

R.J.B. Gage

Place and Dates of Hearing:

Vancouver, British Columbia

January 20 and 21, 2022

Place and Date of Judgment:

Vancouver, British Columbia

May 12, 2022

 

Written Reasons by:

The Honourable Chief Justice Bauman

Concurred in by:

The Honourable Mr. Justice Butler

Dissenting Reasons by:

The Honourable Madam Justice Bennett


 

Summary:

In 2019, legislation came into force that granted to the Civil Resolution Tribunal (CRT) jurisdiction to decide liability and damages for minor injuries (a statutory category) resulting from motor vehicle accidents. Aspects of this jurisdiction are exclusive and others are shared with the Supreme Court of British Columbia. In brief, the CRT was given exclusive jurisdiction to classify an injury as a minor injury. This triggers a presumption that the associated damages are below the tribunal limit amount ($50,000). The CRT has presumptive, but not exclusive, jurisdiction to adjudicate the liability and damages when the presumption that the damages will be below the tribunal limit amount has not been rebutted. The legislation directs the Supreme Court to dismiss or stay matters that are within the jurisdiction of the CRT unless it would not be in the interests of justice and fairness. Parties may apply for judicial review of decisions of the CRT, with decisions relating to liability and damages being reviewed on roughly the appellate standard of review.

The Trial Lawyers Association of British Columbia and several plaintiffs in motor vehicle claims challenged the scheme, arguing in part that the grant of jurisdiction to the CRT offended s. 96 of the Constitution Act, 1867. They argued that the scheme impermissibly granted to the CRT a jurisdiction that was dominated by the superior courts at the time of Confederation. The challenge was successful, with the judge declaring the relevant provisions of the legislation to be of no force or effect.

The Attorney General of British Columbia appeals, as do several defendants in motor vehicle claims. They argue, among other things, that the judge erred in his approach to the historical inquiry regarding the jurisdiction of inferior and superior courts at Confederation. Further, they argue that the grant of jurisdiction does not offend the core-jurisdiction test recently formulated by the Supreme Court of Canada in Reference re Code of Civil Procedure (Que.), art. 35, 2021 SCC 27.

Held: Appeal allowed. First, the historical inquiry reveals that at Confederation, in at least two of the four confederating provinces, jurisdiction over ‘personal injury claims in tort’ (whether or not considering related property damage claims) was generally shared between inferior and superior courts. Second, the impugned scheme does not impermissibly invade the core jurisdiction of the Supreme Court of British Columbia. The core-jurisdiction test is intended to protect the essential character of superior courts: as primary guardians of the rule of law, playing a significant role in the development of the common law, and maintaining national unity. Highlighting only some of the factors: the Supreme Court of British Columbia retains significant involvement over personal injury and tort law generally; there are several avenues for the Supreme Court to retain jurisdiction over the sort of motor vehicle claims at issue in this litigation; the Supreme Court plays a robust role on judicial review; and the scheme was enacted to further an important societal objective. The province had identified that the existing system of compensating for minor personal injuries in tort was threatening the viability of the public insurer, ICBC, and equally the actual compensation recovered by the victims of these minor injuries. The impugned scheme is an experiment with a new form of access to justice and represents an integrated comprehensive effort at reform directed at a social mischief identified by other branches of government.

Dissent: Bennett J.A. would dismiss the appeal. The reasons of Chief Justice Bauman are concurred with regarding the application of the Residential Tenancies test and the cross-appeal. The basis for dismissing the appeal lies in the application of the core jurisdiction test. The impugned sections of the CRTA infringe s. 96. The CRT has been established as a parallel court assigned to deal with personal injury from motor vehicle claims. As a result, the unity and uniformity of the Canadian judicial system is undermined, and the core jurisdiction of the superior court has been impermissibly infringed.


 

Table of Contents

Paragraph Range

Reasons for Judgment of the Honourable Chief Justice Bauman:

[1] - [12]

I. Overview

[1] - [12]

II. The Scheme

[13] - [37]

A. Background: The Ernst & Young Report

[13] - [23]

B. The Scheme

[24] - [37]

III. Summary of the Jurisprudence

[38] - [51]

IV. The Parties and Procedural History

[52] - [55]

V. The Chambers Judgment

[56] - [83]

A. Characterization

[60]

B. Residential Tenancies Step One – The Historical Analysis

[61] - [70]

C. Residential Tenancies Step Two – A Judicial Function?

[71] - [72]

D. Residential Tenancies Step Three – The Institutional Setting

[73] - [81]

E. Section 16.1 of the CRTA

[82]

F. Remedy

[83]

VI. Alleged Errors and Argument

[84] - [101]

A. Step One of Residential Tenancies

[85] - [94]

B. Step Three of Residential Tenancies

[95] - [98]

C. Core Jurisdiction

[99] - [101]

VII. Analysis

[102] - [180]

A. Historical Considerations

[106] - [131]

B. Core Jurisdiction Test

[132] - [180]

(vi) Important Societal Objective

[147] - [169]

(i) Scope of Jurisdiction

[170] - [173]

(ii) Concurrency or Exclusivity of the Grant

[174] - [175]

(iii) The Monetary Limits

[176]

(iv) Appeal Mechanisms

[177] - [179]

(v) Impact on Supreme Court’s Caseload

[180]

VIII. Disposition

[181] - [182]

Reasons for Judgment of the Honourable Madam Justice Bennett:

[183] - [184]

I. Residential Tenancies Test

[185] - [191]

II. The Core Jurisdiction

[192] - [251]

A. Scope of the Jurisdiction

[211] - [217]

B. Whether the Grant is Exclusive or Concurrent

[218] - [224]

C. Monetary Limit

[225] - [228]

D. Appeal Jurisdiction

[229] - [234]

E. Impact of the Caseload of the Superior Court of General Jurisdiction

[235] - [236]

F. Pursuit of an Important Societal Objective

[237] - [245]

G. Lack of Independence of the Tribunal

[246] - [247]

H. Weighing the Factors

[248] - [251]

III. Cross Appeal

[252]


 

Reasons for Judgment of the Honourable Chief Justice Bauman:

I. Overview

[1]             Canada’s Constitution creates a division of legislative powers between the federal parliament and the provincial legislatures.

[2]             In respect of the judicial system and the judiciary, by s. 92(14) of the Constitution Act, 1867, the provinces “may exclusively make laws” in respect of matters coming within the subject: “The Administration of Justice in the Province.”

[3]             In the language of the cases there is a “subtraction” from that exclusive power reserved to the federal executive by s. 96:

96        The Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick.

[4]             Again, in the language of the cases there is much more to s. 96 than first meets the eye. It goes beyond a mere power to appoint judges to effectively preclude the provinces from creating courts or administrative tribunals with powers that parallel or mirror the “core jurisdiction” of the Superior Courts described in s. 96.

[5]             Here, the Province of British Columbia has vested an administrative tribunal, the Civil Resolution Tribunal (“CRT”), created by the executive branch, with a certain jurisdiction over the resolution and disposition of so-called “minor injury” claims arising out of motor vehicle accidents in the Province.

[6]             The question before us is whether it has done so within permissible bounds given the jurisprudence that has developed around s. 96.

[7]             In a summary trial before the Chief Justice of the Supreme Court, he concluded that the Province’s scheme offended s. 96. He struck down certain provisions in the legislative package.

[8]             I have concluded that he erred in doing so.

[9]             In what is today the leading case on s. 96, Reference re Code of Civil Procedure (Que.), art. 35, 2021 SCC 27 [“Article 35 Reference”] (decided after the trial judgment in this matter), Chief Justice Wagner said in respect of the powers of the provinces under s. 92(14) and generally under the Constitution:

[248]    A number of appellants and interveners pointed out the various initiatives introduced by provincial legislatures that have recognized the need to reform some aspects of the operations of their private law courts in order to enhance access to justice in their province. Protection of the superior courts’ core jurisdiction in this field should certainly not have the effect of deterring the provinces and territories from making essential efforts to this end. As Brandeis J. stated in New State Ice Co. v. Liebmann, 285 U.S. 262 (1932), at p. 311, “[i]t is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” In this sense, for the reasons set out above, the approach I am suggesting here does not interfere with the ability of the provinces and territories to experiment with new forms of access to civil justice.

[10]         The Chief Justice said this in dissent but I do not read the majority in the Article 35 Reference as disagreeing with these critical sentiments.

[11]         In any case, it is a question of degree whether a province has overstepped in its “experiment” to enhance its perception of better access to justice. And in that regard the court must defer to the wisdom of the legislature as to the efficacy of any particular “experiment.”

[12]         I note that the Trial Lawyers Association at various points has stressed that this case represents a grant of a judicial jurisdiction to an administrative tribunal allegedly lacking independence of the executive branch. I do not see this litigation as the proper avenue to advance a claim grounded on the CRT’s alleged lack of judicial independence. Such a claim should be brought in the posture that was followed in the Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3, 150 D.L.R. (4th) 577 [P.E.I. Reference], where the challenge would be to the law or government action that trenches on the independence that is required by a tribunal exercising a sufficiently important judicial function (there, ss. 7 and 11(d) of the Charter were implicated). Alternatively, a litigant could allege a reasonable apprehension of bias on judicial review of a CRT decisionan allegation for which there is no evidence in this record. Indeed, the alleged “lack of independence” submission was not developed in any meaningful way in this Court or in the Supreme Court. Lack of independence in the recipient tribunal is a question separate from whether a grant of jurisdiction invades the core jurisdiction of the superior courts.

II. The Scheme

A. Background: The Ernst & Young Report

[13]         I begin with a review of the societal and policy context revealed by a report authored by Ernst & Young (the “EY Report”). It was delivered to the government on 10 July 2017. The Attorney General relies on this report as part of the legislative history having been referenced in the legislative debates. The chambers reasons also briefly discuss the EY Report (at paras. 309–11). In my view, its conclusions are critical reading in this matter.

[14]         The purpose of the EY Report was to investigate the long-term affordability of auto insurance in the province and to provide a range of options to the Insurance Corporation of British Columbia (“ICBC”) and the government that would increase fairness and affordability while keeping basic premium increases in line with inflation. The report was premised on affordability, efficiency, sustainability, fairness, and simplicity of the ICBC insurance product as guiding principles.

[15]         The report estimated that under the automobile insurance system as it then existed, if ICBC were to cover its costs, by 2019 the average driver in British Columbia would see their premium increase by over 30% compared to those in effect in 2017. A breakdown of ICBC’s operating expenses for its basic insurance product in policy year 2016 showed that ICBC was spending more on legal costs (24%) than on minor injuries (20%) or on non-minor injuries (17%).

[16]         The report noted that British Columbia was the only province that was still using an unmodified “litigation-based” “adversarial model” in which not-at-fault drivers sued at-fault drivers. Other provinces in Canada have undergone reforms to control escalating claims costs and to maintain affordability. The report identified five main issues driving the unsustainability of British Columbia’s insurance system as it existed at the time: (1) more accidents were occurring; (2) the increase in claims was outpacing the increase in accidents; (3) average settlements for minor injuries were increasing; (4) claim costs for minor injuries “increased from 30% to almost 60% of total bodily injury claims costs since 2000”; and (5) premiums were not covering claim costs. The options presented by the report were intended to address these issues.

[17]         One stark comparison highlights the significance of minor injuries. The average settlement for a minor injury in the year 2000 was $8,220. By 2016, it was $30,038, an increase of 365%. Over that same period, the payout for non-minor injuries increased from $38,014 to $48,078, an increase of 26.5%.

[18]         The report concluded that comprehensive reform was needed if these issues were to be resolved. It presented options grouped into three categories: (1) road safety; (2) re-design of the insurance product, where the “bulk of the savings will come from”; and (3) process and productivity improvements. Relevant for this appeal is the second category of reforms.

[19]         Regarding the insurance product re-design, the report presented a spectrum of options spanning from an approach that retained the litigation-based model but adding caps on damage awards for minor injuries, to a largely litigation-free approach, where the right to sue would be abrogated other than in limited circumstances and accident benefits would be significantly increased. Options situated in the middle of that spectrum included the introduction of an “independent dispute resolution system” to “decrease reliance on courts.”

[20]         The report described various alternative dispute resolution models. One would be an alternative dispute resolution body that is multi-purpose, not dealing exclusively with personal injury claims. Another option would be a body created specifically for alternative dispute resolution of personal injury claims. In all the comparative models the authors reviewed, there was space for court involvement at some stage. For example, in Saskatchewan, an Automobile Injury Appeal Commission hears no-fault benefit appeals. Its decisions are binding, but the claimant can appeal further to the Court of Appeal on questions of law. The report proposed that such an alternative dispute resolution service “could be compulsory for both parties but with exemptions and access to court after process if no resolution achieved.”

[21]         The report also recognized that a degree of independence would be required (EY Report at 113):

The new litigation and alternate dispute resolution system would require the setting up of a government body independent of ICBC to manage the new system to ensure an appropriate balance in its operations between ICBC and claimants.

[22]         The report envisioned that implementation of any reforms would happen in “several parallel streams” and that “the reforms must be seen as a total package; otherwise, unforeseen undesirable consequences are more likely to emerge.”

[23]         The impugned scheme (described next) is consistent with a mid-point on the spectrum of options presented in the report. Today’s scheme (described in brief at para. 37, below, and in effect since 1 May 2021) is more akin to the fully care-based approach presented in the report, abrogating the right to sue for personal injury damages except in limited circumstances.

B. The Scheme

[24]         The impugned scheme was introduced by legislation and regulation in 2018, coming into force on 1 April 2019.[1] The scheme created a statutory category of injuries called minor injuries: see Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231, s. 101 [IVA]; Minor Injury Regulation, B.C. Reg. 234/2018. The scheme caps the amount recoverable by a claimant for non-pecuniary damages from “minor injuries” incurred in an accident: see IVA, s. 103; Minor Injury Regulation, s. 6 (declaring the minor injury limit in 2019 to be $5,500 and that it be updated each year based on the consumer price index).

[25]         Subsection 133(1) of the amended Civil Resolution Tribunal Act, S.B.C. 2012, c. 25 [CRTA], gives jurisdiction to the CRT “in a dispute, in respect of an accident, over a claim concerning one or more of the following”:

(a)        the determination of entitlement to benefits paid or payable under the Insurance (Vehicle) Act;

(b)       the determination of whether an injury is a minor injury for the purposes of the Insurance (Vehicle) Act;

(c)       liability and damages, if the amount, including loss or damage to property related to the accident but excluding interest and any expenses referred to under section 49 [order for payment of expenses], is less than or equal to the tribunal limit amount.

[26]         Of those, only ss. 133(1)(b) and (c) are at issue in this appeal. For the purpose of ss. 133(1)(b) and (c), accident “means an accident occurring in British Columbia that is caused by a vehicle or the use or operation of a vehicle as a result of which a person suffers bodily injury”: CRTA, s. 132(a); IVA, s. 101. The tribunal limit amount is currently set by regulation to $50,000: Accident Claims Regulation, B.C. Reg. 233/2018, s. 7.

[27]         Subsection 135(1) of the CRTA establishes a presumption that when an injury is a minor injury, the damages are less than or equal to the tribunal limit amount. That presumption can be rebutted “on the basis of satisfactory evidence that there is a substantial likelihood that the damages will exceed the tribunal limit amount.”

[28]         Paragraphs 133(2)(a) and (b) deem the CRT to have exclusive jurisdiction over the determination of whether an injury is a minor injury and specialized expertise (not exclusive jurisdiction) over the determination of liability and damages:

133      …

(2)     For the purposes of this Act, the tribunal

(a)     has exclusive jurisdiction in respect of claims described in subsection (1)(a) or (b) of this section, and

(b)     is to be considered to have specialized expertise in respect of claims described in subsection (1)(c) of this section.

[Emphasis added.]

[29]         The significance of those declarations is that they limit, to a degree, the involvement of the Supreme Court. Section 16.1 of the CRTA says:

16.1     (1) Subject to subsection (2) and section 16.4(1) and (2) [bringing or continuing claim in court], if, in a court proceeding, the court determines that all matters are within the jurisdiction of the tribunal, the court must,

(a)     in the case of a claim within the exclusive jurisdiction of the tribunal, dismiss the proceeding,

(b)     in the case of a claim in respect of which the tribunal is to be considered to have specialized expertise, dismiss the proceeding unless it is not in the interests of justice and fairness for the tribunal to adjudicate the claim, or

(c)     in any other case, stay or dismiss the proceeding, as the court considers appropriate, unless it is not in the interests of justice and fairness for the tribunal to adjudicate the claim.

(2) Subject to section 16.4(1) and (2), if, in a court proceeding, a party alleges that a matter in a proceeding before the court relates to a minor injury within the jurisdiction of the tribunal under section 133(1)(b) or (c) [claims within jurisdiction of tribunal for accident claims], the court must stay the proceeding until the tribunal determines, as applicable,

(a)     in the case of an accident claim under section 133(1)(b), whether an injury is a minor injury, and

(b)     in the case of an accident claim under section 133(1)(c), unless it is not in the interests of justice and fairness for the tribunal to make the determination, whether a party has established that there is a substantial likelihood that damages will exceed the tribunal limit amount.

[30]         These provisions require the Supreme Court to dismiss proceedings with respect to a determination of whether an injury is a minor injury (because such a determination is within the exclusive jurisdiction of the CRT). In the case where a claim relates to what the CRT has determined to be a minor injury but, contrary to the presumption under s. 135(1), a party alleges that the damages will exceed $50,000, the Supreme Court must stay the proceedings until the CRT determines whether the presumption has been rebutted, “unless it is not in the interests of justice and fairness for the tribunal to make the determination”: CRTA, s. 16.1(2)(b). Similarly, the Supreme Court must dismiss proceedings for the determination of liability or damages less than or equal to $50,000 (over which the tribunal is deemed to have specialized expertise), “unless it is not in the interests of justice and fairness for the tribunal to adjudicate the claim”: CRTA, s. 16.1(1)(b). Said again: the Supreme Court need not cede jurisdiction to the CRT on the question of whether there is a substantial likelihood that damages will exceed the tribunal limit amount or on the question of ultimate liability and damages, when it is not in the interests of justice and fairness for the CRT to make the determination or to adjudicate the claim.

[31]         Sections 16.1, 133(1)(b) and (c) of the CRTA and, by reference, s. 7 of the Accident Claims Regulation are the impugned provisions relevant to this appeal.

[32]         While not being challenged, the provisions relating to judicial review of CRT decisions are also relevant. I note that the judicial-review provisions in the CRTA have been amended subsequent to the initiation of this action. In this action, the plaintiffs are challenging the validity of the impugned provisions in the context of the judicial-review provisions as they existed on 1 April 2019. Where I believe it will be helpful, I will comment on the effect of the subsequent amendments, but recognize that is beyond the scope of this appeal.

[33]         The judicial-review provisions in the CRTA as they were in force on 1 April 2019 were:

56.7     (1) The tribunal must be considered to be an expert tribunal, and section 58 (2) and (3) [standard of review with privative clause] of the Administrative Tribunals Act applies, in relation to an application for judicial review of a final decision of the tribunal in

(a)     a claim within the exclusive jurisdiction of the tribunal, or

(b)     a claim in respect of which the tribunal is to be considered to have specialized expertise.

(2) Subsection (1) does not apply to an application for judicial review of a final decision of the tribunal that relates to liability in an accident claim described in section 133 (1) (c) [claims within jurisdiction of tribunal for accident claims] of this Act.

(3) Section 59 [standard of review without privative clause] of the Administrative Tribunals Act applies to an application for judicial review of a final decision of the tribunal in a claim other than a claim to which subsection (1) of this section applies.

[Underline added.]

[34]         The subsequent amendments (Attorney General Statutes (Vehicle Insurance) Amendment Act, 2020, S.B.C. 2020, c. 10, s. 38; Miscellaneous Statutes Amendment Act (No. 2), 2021, c. 27, s. 1) altered the language of s. 56.7 so as to make more uniform the standards of review attracted by various decisions under s. 133(1). The amendments also incorporated the applicable standards directly into the CRTA instead of referring to the Administrative Tribunals Act, S.B.C. 2004, c. 45 [ATA].

[35]         As the provisions operated on 1 April 2019, findings of fact and law with respect to damages under s. 133(1)(c) were reviewable under a correctness standard (due to s. 58(2)(c) of the ATA), with findings with respect to liability under s. 133(1)(c) reviewable under the standard set out at s. 59 of the ATA. The standard at s. 59 of the ATA is roughly the appellate standard of review, albeit with questions of mixed fact and law attracting correctness review: see Lavender Co-Operative Housing Association v. Ford, 2011 BCCA 114 at para. 23. As now amended, findings concerning claims described in s. 133(1)(c), whether regarding damages or liability, are reviewable under the standard set out in s. 56.8 of the CRTA, which reproduces the standard from s. 59 of the ATA.

[36]         The effect of the legislative amendments that occurred throughout this litigation can be summarized as follows: findings of fact with respect to damages under s. 133(1)(c) of the CRTA are today reviewed on a more deferential standard than they were reviewed at the outset of this litigation. On 1 April 2019, findings of fact with respect to damages would be reviewed for correctness. Today, findings of fact with respect to damages must not be set aside unless “there is no evidence to support the finding, or… in light of all the evidence, the finding is otherwise unreasonable.”

[37]         I also note that the impugned provisions have reduced application since 1 May 2021. On that date, s. 115 of the IVA came into force, which generally abrogates personal rights of action regarding “bodily injury caused by a vehicle arising out of an accident.”[2] There are a few exceptions: IVA, ss. 114, 116. For example, an action or proceeding may still be commenced against a person “whose use or operation of a vehicle… caused bodily injury, and… results in the person’s conviction of a prescribed Criminal Code offence”: IVA, s. 116(2)(f). For these and other listed exceptions, the impugned scheme in this litigation will still have application.

III. Summary of the Jurisprudence

[38]         The purpose of s. 96 is to give effect to a compromise reached at Confederation. Provinces have exclusive jurisdiction over the “administration of justice in the province”: Constitution Act, 1867, s. 92(14). But subtracted from that power is the power to make judicial appointments to superior courts. The federal power over superior court appointments furthers the twin principles of national unity and the rule of law: see Reference re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714 at 728, 123 D.L.R. (3d) 554 [Residential Tenancies]; Article 35 Reference at para. 4.

[39]         For superior courts to fulfil the objectives of maintaining national unity and preserving the rule of law, legislatures must not be permitted to create parallel courts with provincially appointed judges or to otherwise interfere with the exercise of the superior courts’ core jurisdiction: Article 35 Reference at para. 63. A parallel court that mirrors or ousts the jurisdiction that was exercised by superior courts at the time of Confederation would be doing the work envisioned by s. 96, but without federally appointed judges. The threat is that this would undermine the unitary nature of Canada’s judicial system and would undermine the role of superior courts as the “primary guardians of the rule of law”: Article 35 Reference at paras. 31 and 63.

[40]         The threat can come from inferior courts and tribunals alike. In either case, vesting in them “jurisdiction or powers conformable or analogous to those exercised by Courts which are within s. 96 represents the line that may not be crossed” (citations and punctuation omitted): Article 35 Reference at para. 58, citing Tomko v. Labour Relations Board (N.S.), [1977] 1 S.C.R. 112 at 120, 69 D.L.R. (3d) 250 [Tomko].

[41]         The Supreme Court of Canada has developed two tests intended to police this line. One is the test first articulated in Residential Tenancies which is focused on whether the jurisdiction that has been granted to a potential “shadow” or “mirror” court was dominated by the superior courts at confederation. The second is a test focused on protecting the “core jurisdiction” of the superior courts, ensuring that “superior courts are not impaired in such a way that they are unable to play their role under s. 96”: Article 35 Reference at para. 63.

[42]         The Residential Tenancies test was summarized by the Supreme Court of Canada in the Article 35 Reference (at para. 59):

Characterization of the grant of jurisdiction: To determine whether a grant of jurisdiction is constitutionally infirm, a court must first properly characterize the jurisdiction being transferred.

Three steps:

(1)             Does the transferred jurisdiction conform to a jurisdiction that was dominated by superior, district or county courts at the time of Confederation?

(2)             If so, was the jurisdiction in question exercised in the context of a judicial function?

(3)             If the first two questions are answered in the affirmative, is the jurisdiction either subsidiary or ancillary to an administrative function or necessarily incidental to the achievement of a broader policy goal of the legislature?

(Residential Tenancies, at pp. 73436; Attorney General of Quebec v. Grondin, [1983] 2 S.C.R. 364; Sobeys, at p. 266; Reference re Residential Tenancies Act (N.S.), at paras. 32, per Lamer C.J., concurring, and 74, per McLachlin J. for the majority)

[43]         The burden throughout is on the plaintiff impugning the grant of jurisdiction. If the plaintiff fails to demonstrate that the jurisdiction was dominated by superior courts at confederation, or that the jurisdiction is exercised in the context of a judicial function, or that the jurisdiction is not subsidiary or ancillary to an administrative function or necessarily incidental to the achievement of a broader policy goal, the challenge will fail. This is so even though second and third steps of the Residential Tenancies test are sometimes referred to as an opportunity to “save” or “validate” the grant: see e.g., MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725 at 739, 130 D.L.R. (4th) 385 [MacMillan Bloedel]; Sobeys Stores Ltd. v. Yeomans, [1989] 1 S.C.R. 238 at 254, 57 D.L.R. (4th) 1 [Sobeys].

[44]         The core-jurisdiction test was also clarified and refined in the Article 35 Reference. The majority described its operation as a stand-alone test:

[63]      The core jurisdiction test aims to do more than simply protect historical jurisdiction. It also ensures that superior courts are not impaired in such a way that they are unable to play their role under s. 96. The superior courts’ core jurisdiction includes the powers and jurisdiction essential to their role as the cornerstone of the unitary justice system and the primary guardians of the rule of law. These essential functions are not limited to inherent jurisdiction and powers in the traditional sense, but include any subjectmatter jurisdiction that meets this criterion. If these essential powers and areas of jurisdiction were transferred exclusively to another court, that court would become a parallel court — an outcome prohibited by the Constitution. It follows that the creation of a parallel court would prevent the superior courts from playing their constitutional role. That being said, even if no parallel court is created, the superior courts could be impaired to such an extent that they can no longer play their constitutional role. This would be the case if the legislature were to interfere impermissibly with the exercise of core jurisdiction by, for example, circumscribing it to the point of “maim[ing]” the superior courts in their very essence (MacMillan Bloedel, at para. 37).

[68]      The content of the core jurisdiction includes the inherent jurisdiction and inherent powers of a superior court recognized in MacMillan Bloedel: namely, review of the legality and constitutional validity of laws, enforcement of its orders, control over its own process, and its residual jurisdiction as a court of original general jurisdiction.

[Emphasis added.]

[45]         In addition to those previously recognized aspects of core jurisdiction, the Court in the Article 35 Reference emphasized that if the superior courts are to have the unifying effect that motivates s. 96, they must maintain a significant role in the development of the private law:

[83]      In our view, the superior courts’ core jurisdiction presupposes a broad subjectmatter jurisdiction whose scope corresponds, at the very least, to the central divisions of private law to which more specific fields of law are often attached. This can be explained by the superior courts’ historical origins and their nature as courts of original general jurisdiction, as well as by the principles of national unity and of the rule of law that underpin s. 96.

[84]      Historically, the English royal courts had general civil jurisdiction and were responsible for the major developments in private law. The Canadian superior courts, which are descended from those courts, inherited their role of prime importance in the judicial system. At the time of Confederation, they had jurisdiction over all important civil cases.

[85]      The paramount role given to the superior courts derives in part from the fact that they are courts of original general jurisdiction. A court of original general jurisdiction is the antithesis of a specialized tribunal. A specialized tribunal draws legal conclusions based on a limited number of principles and rules falling within its area of expertise, whereas a court of original general jurisdiction considers and interprets many principles and general rules that may apply in a number of fields of law. In giving the superior courts this breadth of perspective, the framers of the Constitution intended them to ensure the maintenance and coherent development of an actual order of positive laws, as well as to ensure stability and predictability in private law relationships. If the legislatures were free to diminish, by means of unlimited transfers of jurisdiction, the superior courts’ ability to lay down the broad lines of the case law, it would no longer be possible for these courts to perform their constitutional role as the primary guardians of the rule of law.

[86]      This is why a general jurisdiction over private law matters must be accompanied by a subjectmatter jurisdiction that is broad enough to preserve the superior courts’ role in providing jurisprudential guidance on private law. In our view, this requires significant — though not necessarily predominant — involvement in the resolution of disputes falling under the most fundamental branches of private law, such as property law, the law of succession and the law of obligations. A province may assign portions or offshoots of these fields to courts whose judges it appoints, within the restrictions of Residential Tenancies. But if, in so doing, it limits the superior court’s involvement significantly, then it “alters [that court’s] essence, making it something less than a superior court”. In short, a province which takes away an aspect of the court’s core jurisdiction contravenes s. 96 — a provision whose purpose lies in the “maintenance of the rule of law through the protection of the judicial role”. In every case, the line that must not be crossed will be dependent upon a contextual and multifactored analysis.

[Emphasis and internal citations removed.]

[46]         The Court then presented six non-exhaustive factors that were useful in that reference question:

[88]      … In this case, six factors are of particular relevance: the scope of the jurisdiction being granted, whether the grant is exclusive or concurrent, the monetary limits to which it is subject, whether there are mechanisms for appealing decisions rendered in the exercise of the jurisdiction, the impact on the caseload of the superior court of general jurisdiction, and whether there is an important societal objective. This list is not exhaustive. Other factors may be relevant in different contexts: one need only think, for example, of geographical limitations. However, in the circumstances of this case and in light of the evidence before us, we are of the view that the question can be decided on the basis of these six factors.

[Emphasis added.]

[47]         I will dwell for a moment on the relationship between the Residential Tenancies test and the core-jurisdiction test and the significance of the historical analysis in the Article 35 Reference. The majority found that “there was a general shared involvement in the area of jurisdiction at issue: three of the four founding provinces’ inferior courts had, at the time of Confederation, sufficient practical involvement in matters relating to contractual and extracontractual obligations”: Article 35 Reference at para. 76. The significance of this finding is at issue in this appeal—the appellants saying that it dictates the outcome of the historical analysis here; the respondents saying that it is still open to this Court to find that the impugned jurisdiction was dominated by superior courts at Confederation.

[48]         A broad grant of jurisdiction—such as that in the Article 35 Reference —essentially bypasses the entire Residential Tenancies test and is left to be scrutinized solely through the multi-factor core-jurisdiction test. But this is not a free pass. The breadth of the granted jurisdiction will be considered in the core-jurisdiction analysis, where a broad scope weighs against the constitutionality of the grant.

[49]         Nonetheless, the Supreme Court of Canada has recognized something of a paradox in the historical-analysis step of the Residential Tenancies test. The broader the impugned grant of jurisdiction, the more readily available a finding of concurrency (Sobeys at 253):

… the broader the characterization the more likely it will be that at least some aspects of the jurisdiction will have been within the purview of inferior courts at Confederation.

[50]         The impugned jurisdiction at issue in the Article 35 Reference was a wholesale transfer of jurisdiction over “contractual and extracontractual obligations”: Article 35 Reference at para. 3. The Court said that the “expansive characterization required by the provision at issue inappropriately favours a finding of general shared involvement” (emphasis added): Article 35 Reference at para. 78. This is a “functional gap” in the Residential Tenancies test. The historical analysis “cannot readily be applied to a court-to-court transfer of a vast area of jurisdiction”: Article 35 Reference at para. 77. Thus, despite a finding of concurrency for the jurisdiction of “contractual and extracontractual obligations,” I read the Article 35 Reference to say that this concurrency finding is an anomaly that does not dictate the outcome of a historical analysis for smaller subsets of jurisdiction, to which the historical analysis can be readily applied. The alternative would result in our jurisprudence depending on a caprice of history: the sequence in which s. 96 challenges arrive at the courts.

[51]         Again, the paradox we are accepting is the one accepted in Sobeys: the broader the grant, the more available a finding of concurrency. This calls for caution before treating higher courts’ concurrency findings as binding on a new question about a narrower grant.

IV. The Parties and Procedural History

[52]         When the impugned provisions came into force, on 1 April 2019, the Trial Lawyers Association of British Columbia filed a notice of civil claim alleging that the cap on non-pecuniary damages flowing from minor injuries infringed s. 15 of the Charter and that ss. 16.1 and 133 of the CRTA violate s. 96 of the Constitution Act, 1867. The notice of civil claim was amended on 2 March 2020 to name the Attorney General as defendant and to include the additional individual plaintiffs and defendants.

[53]         The plaintiff Trial Lawyers Association of British Columbia is an organization of over 1,500 legal professionals in the province, many of whom are lawyers who frequently represent individuals who have suffered injuries as a result of motor vehicle accidents. The additional plaintiffs are individuals who suffered minor injuries in motor vehicle accidents after 1 April 2019 and who have commenced actions seeking to have their claims adjudicated in the Supreme Court (the “MVA plaintiffs”). The additional defendants (the “MVA defendants”) are defendants in proceedings brought by the MVA plaintiffs.

[54]         On 28 April 2020, the plaintiffs applied for summary judgment or trial (pursuant to Supreme Court Civil Rules 9‑6(5) or 9‑7(2)) to resolve only that part of their claim relating to the s. 96 challenge to ss. 16.1 and 133 of the CRTA. The judge was satisfied that this portion of the claim could be decided by summary judgment and/or trial as necessary.

[55]         The judge declared ss. 133(1)(b) and (c) (determination of whether an injury is a minor injury and determination of liability and damages) unconstitutional and of no force or effect. He also declared that s. 16.1 (requiring the Supreme Court to dismiss or stay certain proceedings) unconstitutional insofar as it applies to accident claims, with the exception of the determination of accident benefits under s. 133(1)(a). He declined to grant any independent order with respect to the Accident Claims Regulation (of which s. 7 sets the tribunal limit amount to $50,000).

V. The Chambers Judgment

[56]         The summary proceedings were before Chief Justice Hinkson of the Supreme Court of British Columbia. The judgment was delivered on 2 March 2021, with reasons indexed as Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2021 BCSC 348 [Summary Reasons]. Unless otherwise specified, citations in this section are to the Summary Reasons.

[57]         The judge first set out the legislative background, the context of the litigation, and the legal tests as presented above. He did not have the benefit of the reasons of the Supreme Court of Canada from the Article 35 Reference that revised the core-jurisdiction analysis and provided a methodology for updating 1867 pecuniary limits to present-day values.

[58]         As part of the context, the judge noted a concern unique to grants of jurisdiction to tribunals rather than to inferior courts. Inferior courts, while not s. 96 courts, are protected by the constitutional guarantees of individual and institutional independence: see P.E.I. Reference. In contrast, administrative tribunals do not benefit from this protection: see e.g., Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52.

[59]         At paragraphs 103–105, the judge recognized that novelty may render a grant of jurisdiction permissible. “If a power is new, there can be no conflict with s. 96”: Reference re Amendments to the Residential Tenancies Act (N.S.), [1996] 1 S.C.R. 186 at 243, 131 D.L.R. (4th) 609 [Residential Tenancies 1996]. And even “[a] jurisdiction historically exercised by the superior courts may also cease to be analogous if its current manifestation is animated by a distinctly different organizational or operational principle or philosophy”: Residential Tenancies 1996 at 244. But codification of common law does not make the jurisdiction novel. “Covering an existing body of law with a new statutory wrapper dose not make it novel”: Residential Tenancies 1996 at 248.

A. Characterization

[60]         The judge accepted the plaintiffs’ position that the jurisdiction at issue is properly characterized as “personal injury claims in tort”: para. 126. He found this sufficiently narrow as directed by Sobeys; it is appropriately focused on the type of dispute that the CRT would adjudicate under the impugned jurisdiction.

B. Residential Tenancies Step One – The Historical Analysis

[61]         The judge rejected the submission that the grant of jurisdiction was novel. The Attorney General’s novelty argument was based on a narrower characterization of the jurisdiction: “non-fatal personal injury claims in tort that arise out of road accidents”: para. 122. This argument was foreclosed by the judge rejecting that characterization. But the Attorney General also argued that even personal injury claims generally, in relation to unintentional torts, were essentially non-existent at Confederation and that the categorization of injuries as minor injuries (a statutory construct) is also novel.

[62]         The judge did not find the dearth of personal injury claims prior to Confederation to be best considered in the assessment of novelty. He was of the view that “the CRT’s power to decide liability and damages in relation to unintentional injuries caused by another is precisely the sort of work the superior courts have traditionally done”: at para. 136. This is not a “distinctly different organizational principle or operational philosophy” and the legislation has not introduced a “comprehensive regime of new rights and entitlements”: para. 137.

[63]         Proceeding to the exclusivity analysis, the judge summarized the evidence of Professor Donald Fyson as it related to the historic jurisdiction of the courts in the confederating colonies. Professor Fyson reported on the jurisdictional division between inferior and superior courts in Upper Canada, Lower Canada, New Brunswick, and Nova Scotia leading up to Confederation by reference to statutes and other legislative instruments. He also reported on the frequency of personal injury claims, with support from case reports, court records, and newspapers. Given the principle that “questions of domestic law are not matters upon which a court will receive expert evidence,” the judge treated the evidence regarding statutorily allocated jurisdiction purely as an “aide-mémoire” that helpfully summarized the statutes that were also presented in the plaintiffs’ submissions: para. 181. The judge did not rely on any of Professor Fyson’s ultimate conclusions on the issue of whether the superior courts had been allocated exclusive jurisdiction over personal injury in tort.

[64]         In Nova Scotia, the judge found that jurisdiction to hear personal injury claims was in the superior courts and not concurrent with the inferior courts at Confederation. Justices of the peace had jurisdiction over debt actions, but not over damages: para. 161. A geographically-limited Halifax City Court had jurisdiction over personal injury suits up to $40: para. 162.

[65]         In New Brunswick, the judge found that the superior courts and inferior courts did not share concurrent jurisdiction over personal injury claims at Confederation. Prior to 17 June 1867, there existed Inferior Courts of Common Pleas, with concurrent jurisdiction over “all actions except those involving title to lands”: para. 165. However, on 17 June 1867, these courts were abolished and replaced by County Courts (superior courts). Justices of the peace in New Brunswick had limited tort jurisdiction over property, but not personal injury: para. 168.

[66]         In Lower Canada, the judge found that jurisdiction over personal injury claims was exclusively in superior courts (the Superior Court and Circuit Court, both “s. 96 predecessor courts”) at Confederation. One point of contention was the relevance of the Code of Civil Procedure of Lower Canada (CCPLC), which came into force 28 June 1867. It purported to reproduce the pre-existing consolidated statutes, not changing the jurisdiction of the Commissioners’ Courts (inferior courts). Article 1188 of the CCPLC declared that the jurisdiction of Commissioners’ Courts was limited to matters arising from contract or quasi-contract. Professor Fyson was of the opinion that the codifiers should not be trusted to have accurately codified the pre-existing law. The Attorney General, arguing for a finding of concurrency, noted that nothing in the pre-Confederation consolidated statutes indicates that the jurisdiction of the Commissioners’ Courts was limited to “contract or quasi-contract.” The judge accepted however that the codifiers did the job they were instructed to do and that they said they did: codifying only existing law; declaring what the Legislature considered “already to be the law at the time of the judicature compromises”: para. 212.

[67]         In Upper Canada, inferior courts (geographically limited, but province-wide, Division Courts) exercised concurrent jurisdiction over personal injury claims.

[68]         There was disagreement as to the relevance of the exact date of Confederation when assessing exclusivity or concurrency of jurisdiction between inferior and superior courts, especially in New Brunswick. The Attorney General argued that McLachlin J. disregarded the 17 June transfer of jurisdiction to the County Courts in Residential Tenancies 1996 and that that approach is binding in this case. The plaintiffs say that approach is only binding with respect to tenancy matters. To accept that the general jurisdiction of the inferior courts as of 16 June 1867 is sufficient to find concurrency would make New Brunswick meaningless under the Residential Tenancies test: para. 200. The judge agreed with the plaintiffs:

[201]    … In my view this was no caprice of history, but rather a deliberate decision to vest jurisdiction in what was about to become a s. 96 court, and place it there for the purpose of the interpretation and application of ss. 92(14) and 96 of the Constitution Act, 1867.

[69]         The judge concluded that in three of the four provinces at Confederation (Nova Scotia, New Brunswick, and Lower Canada), jurisdiction over personal injury claims was exclusively vested in the superior courts: see paras. 231, 258–59.

[70]         The plaintiffs also made an argument that the $50,000 tribunal limit amount is out of step with any concurrent jurisdiction of the inferior courts’ civil jurisdiction at Confederation: see para. 233. While the $50,000 tribunal limit amount is set in the Accident Claims Regulation and the plaintiffs did not specifically challenge that regulation in their pleadings, the judge recognized that the plaintiffs’ challenge “is to the legislative scheme” and he was willing to “consider the scheme in its entirety” including the “validity of the Accident Claims Regulation”: para. 240. However, because the plaintiffs failed to establish through evidence how to compare the monetary limits at Confederation to present-day values, and the methodology announced in the Article 35 Reference was unavailable, the judge could not find that the $50,000 limit was inconsistent with the monetary limits at Confederation. This did not affect the result, given the judge’s conclusion that jurisdiction over personal injury claims was dominated by the superior courts in three of the four confederating provinces at Confederation: see para. 254.

C. Residential Tenancies Step Two – A Judicial Function?

[71]         The plaintiffs then needed to show that the tribunal is now exercising this jurisdiction in a judicial capacity. This question is focused on the nature of the questions that come to the tribunal. See Residential Tenancies at 735:

Where the tribunal is faced with a private dispute between parties, and is called upon to adjudicate through the application of a recognized body of rules in a manner consistent with fairness and impartiality, then, normally, it is acting in a ‘judicial capacity’.

[72]         Notwithstanding the various procedural steps leading up to adjudication—and with the aim of avoiding adjudication—the judge found that when the CRT makes decisions under ss. 133(1)(b) and (c) regarding the liability and damages to which a party is entitled, it exercises a judicial function: see para. 291.

D. Residential Tenancies Step Three – The Institutional Setting

[73]         Finally, the judge considered the two questions at step three of the Residential Tenancies test. The first is whether the judicial power is necessarily incidental to the achievement of the Legislature’s broader policy goals: see paras. 295–375. The second is whether the judicial power is subsidiary or ancillary to the tribunal’s administrative functions: see paras. 295, 376–391. He concluded that neither of these considerations validate the impugned grant of jurisdiction.

[74]         The Attorney General submitted that the impugned grant of jurisdiction furthered two policy objectives: “(1) facilitating proportionate access to justice for lower-value, high-volume MVA claims; and (2) preserving a sustainable and affordable automobile insurance system for British Columbians that strikes a balance between increased care for accident victims and more affordable and fair insurance rates”: para. 298. The plaintiffs argued that the means (the alternative forum) cannot be the policy goal itself and that this is what the province’s position amounts to. The plaintiffs say that this branch of the Residential Tenancies test must be about substantive—not procedural—law reform.

[75]         For the Attorney General, the impugned scheme is part of an overarching move away from litigation-based approach to MVAs and that the CRT provides a forum uniquely suited to facilitate access to justice and to administer the new benefits-focused model. The CRT offers accessibility, high throughput, and lower cost. The motivation for these reforms was the 2017 report by Ernst & Young that forecasted skyrocketing automobile insurance premiums and suggested a variety of modifications to maintain the viability and affordability of ICBC insurance: see Ernst & Young, “ICBC: Affordable and Effective Auto Insurance—A New Road Forward in British Columbia” (10 July 2017), Appeal Book 1530 [EY Report]; see also discussion above at paras. 1323. These options included a cap on non-pecuniary damages, greatly increasing accident benefits, introducing an “alternative dispute resolution service, which could be compulsory for both parties,” and a cap on disbursements for minor injuries: see EY Report at 119, Appeal Book at 1648.

[76]         The Attorney General submitted that the access-to-justice crisis, high-volume MVA litigation, and the findings of the EY Report establish a changed social circumstance that justifies the legislative policy objectives. The judge accepted that access to justice can be furthered in non-court venues: paras. 314–15. But the judge noted that despite the high number of MVA actions being initiated, only about 200 per year, or 40 out of 10,000, claims resolve by trial. The MVA defendants say that this demonstrates not much practical jurisdiction would be lost by moving these claims to the CRT. The judge said these figures could cut the other way: demonstration that the current system is doing well at minimizing the number of cases that go to trial.

[77]         The Attorney General relied on the evidence of two experts—Professors Paul Daly and Richard Susskind—in support of the position that the impugned scheme is a legitimate response to changed social circumstances. The judge summarized Professor Daly’s evidence as presenting the government’s increased reliance on administrative tribunals with a focus on “economical, efficient and effective decision-making”: para. 333. Professor Daly presented the CRT as an example of such a tribunal. Professor Daly’s opinion was that even though reforms may redirect claims to a new forum, this change in the procedural mechanism is itself reflective of “legislative value judgments”—“the medium is the message”: para. 334. Professor Susskind extoled the reputation and benefits of the CRT. It is “the world’s most advanced and best-known operational, fully-functional, public-sector ODR service”: para. 338. It provides “greater access to justice, lower cost service, the speedier disposal of legal problems, a more understandable service, a more convenient service, and a less combative service”: para. 339.

[78]         The judge was critical of both expert opinions because they did not address the constitutionality of the tribunals but instead merely focused on their purported benefits. He was specifically critical of Professor Susskind’s evidence to the extent that it relied on low-response-rate, self-selected survey data. The judge did not think there was enough of a track record of MVAs at the CRT that could support Professor Susskind’s conclusion that the CRT has demonstrated utility or that it will be lower cost.

[79]         The judge accepted the plaintiff’s position that the creation of an alternative forum cannot in itself be the policy goal that validates a grant of jurisdiction. Such an argument would allow validation of any transfer of jurisdiction to an alternative forum: see para. 362.

[80]         While the Attorney General presented the impugned provisions as part of and necessary to a broader package of changes, the judge concluded that there was no “meaningful explanation of the actual interrelationship between the impugned grant and the substantive content of the scheme”: para. 374.

[81]         Regarding the second path to validating the grant—that the judicial function might be ancillary or subsidiary to the tribunal’s administrative functions—the judge was of the view that it is circular to describe adjudication of disputes as subsidiary to the resolution of disputes. The other off-ramps and case-management processes here are not like the comprehensive labour-relations regimes that have validated other judicial functions in Labour Relations Board of Saskatchewan v. John East Iron Works, Ltd. (1948), [1949] A.C. 134, [1948] 4 D.L.R. 673 (P.C.) and Tomko.

E. Section 16.1 of the CRTA

[82]         Given the unconstitutionality of ss. 133(1)(b) and (c), the judge saw that s. 16.1 is “left with no application or meaning in relation to accident claims, except for accident benefits under s. 133(1)(a)”: para. 402. He found that there was no need to consider the arguments that it independently infringed s. 96 on access-to-justice grounds.

F. Remedy

[83]         The plaintiffs conceded, and the judge accepted, that s. 133(1)(a) (which gives the CRT jurisdiction to determine entitlement to statutory benefits) is constitutional and severable from the rest of s. 133(1). He declared ss. 133(1)(b) and (c) unconstitutional and of no force or effect. He also declared that s. 16.1 (requiring the Supreme Court to dismiss or stay matters within the jurisdiction of the CRT) should be read down to not apply to accident claims, except for determination of entitlement to statutory benefits under s. 133(1)(a).

VI. Alleged Errors and Argument

[84]         The appellants’ essential position on appeal can be summarized as follows:

a)    the judge erred by characterizing the granted jurisdiction too broadly and then failed to find that the granted jurisdiction was novel; or

b)    even as characterized by the judge, he erred by failing to find that the granted jurisdiction is analogous to a jurisdiction over which there was general shared involvement or meaningful concurrency between the inferior and superior courts at Confederation; and

c)      the impugned jurisdiction does not offend the core-jurisdiction test.

A. Step One of Residential Tenancies

[85]         The appellants argue that the judge erred by characterizing the jurisdiction too broadly, an error they say permeated the entire analysis. The appellant Attorney General says an appropriate characterization would be “jurisdiction to adjudicate modestly valued civil claims arising from injurious motor vehicle accidents” and “interpretation of ‘minor injury’ for the purposes of determining whether a statutory limit on non-pecuniary damages applies and what the default forum for determination of liability and damages is” (formatting removed): Factum of the Appellant (Attorney General) at paras. 34, 64. The MVA defendants similarly propose, “classification and resolution of small causes in tort related to minor bodily injury and associated property damage resulting from the use or operation of a motor vehicle”: Factum of the Appellants (MVA defendants) at para. 39. The Attorney General acknowledges, however, that any reference to a monetary limit (i.e., “modestly valued”) is now off the table given the clear direction from the Supreme Court of Canada in the Article 35 Reference. The MVA defendants also acknowledge this, but say that the reference to “small causes” in their proposed characterization is a reference to the qualitative nature of the dispute rather than a reference to a monetary limit.

[86]         Regarding novelty, the Attorney General argues the judge did not recognize that tort law relating to MVAs is not comparable to anything confronted by courts in 1867. These are not merely factually new circumstances; it is substantively new law, especially when considered in the context of prevailing insurance regimes that operate as a form of social contract.

[87]         On novelty, the Trial Lawyers Association argues that there is nothing novel about the CRT’s “power to decide liability and damages in relation to unintentional injuries caused by another”; this is “precisely the sort of work superior courts have traditionally done”: Factum of the Respondent at para. 102. This should not be affected by a new mode of injury (vehicles), the frequency of the injuries, or the surrounding insurance regime: Factum of the Respondent at para. 108.

[88]         The Attorney General and MVA defendants say that if the judge was incorrect about either the abolishment of the Inferior Courts of Common Pleas (“ICCP”s) in New Brunswick or about the jurisdiction of the Commissioners’ Courts in Lower Canada, then his conclusion on concurrency as a whole is incorrect. This is because the plaintiffs did not lead any evidence regarding the jurisdiction of the courts in the United Kingdom at Confederation: Summary Reasons at para. 95. Thus, the plaintiffs must establish that the jurisdiction over personal injury in tort was dominated by superior courts in at least three of the four confederating provinces. A two-to-two tie would not be enough for the plaintiffs to meet their burden.

[89]         The Attorney General argues that the judge’s treatment of the transfer of the ICCP jurisdiction on 17 June 1867 is not consistent with the direction from McLachlin J. in Residential Tenancies 1996, where she rejected a strict 1 July 1867 cut-off and said that “pre-confederation jurisdiction should be more generally evaluated”: Residential Tenancies 1996 at para. 83. Regarding the jurisdiction of the Commissioners’ Courts in Lower Canada, the MVA defendants say the judge erred in concluding that the Commissioners’ Courts did not have jurisdiction over personal injury claims. They point to statutes pre-dating art. 1188 of the CCLPC that they say provided the Commissioners’ Courts with jurisdiction over personal injury claims under $25. They say that art. 1188 was not declaratory of pre-existing law and that it was an error for the judge to rely on it as if it were.

[90]         The Trial Lawyers Association defends the conclusion below regarding concurrency on two bases: (1) the judge did not err in his treatment of the removals of jurisdiction near to Confederation; and (2) the current-day $50,000 monetary scope is too large to support a finding of concurrency in Upper Canada, Lower Canada, or Nova Scotia.

[91]         The Trial Lawyers Association acknowledges that McLachlin J. directed courts to not “fix obdurately on the exact date of Confederation”: Factum of the Respondent at para. 132, citing Residential Tenancies 1996. Removal of jurisdiction from inferior courts in the lead-up to Confederation does not necessarily preclude a finding of concurrency. But they say that for a court to find concurrency for the purpose of the Residential Tenancies test, the court must find that the inferior courts in fact exercised such jurisdiction. The Trial Lawyers Association says the relative dearth of personal-injury claims at Confederation precludes a finding of concurrency.

[92]         As for the treatment of art. 1188 in Lower Canada, the Trial Lawyers Association argues that it was declaratory of the law as it existed prior to June 1867: the Commissioners’ Courts’ jurisdiction was always limited to small causes in contract or quasi-contract.

[93]         The Trial Lawyers Association further invites this Court to incorporate a comparison of monetary limits as part of the concurrency analysis. Doing so, they say, would preclude a finding of concurrency in any of the provinces because the upper limit of $40 only translates to at most $26,403 today.

[94]         Little argument was directed exclusively at step two of the Residential Tenancies test (whether the granted jurisdiction is being exercised in the context of a judicial function), with much of the argument on this point blending into the step-three question.

B. Step Three of Residential Tenancies

[95]         The appellants argue that the judge misunderstood the purpose of the evidence from Professors Daly and Susskind. He largely discarded their opinions as “irrelevant”: Summary Reasons at paras. 335, 355. The judge was looking for the evidence of Professors Daly and Susskind to “address the requirement that for such tribunals to exist in the first place, they must meet the Residential Tenancies test”: Summary Reasons at para. 336. But the appellants say that this is circular. The professors’ evidence was part of the argument going to establish that the granted jurisdiction meets the Residential Tenancies test; specifically, their evidence is relevant for step three. The evidence goes to establishing the rational basis that the grant of jurisdiction to the CRT is necessarily incidental to broader policy goals. And Professor Daly’s evidence attempted to explain how procedural goals can be the end-policy goal.

[96]         The appellants also say the judge held them to an improperly high threshold of proof at this step, effectively requiring them to demonstrate efficacy of the CRT, rather than merely a rational basis for treating the grant of jurisdiction as necessarily incidental to their policy goal.

[97]         The asserted policy goal is access to justice. The MVA defendants say the legislature sought to achieve this through public-sector online dispute resolution with a “fundamentally different philosophy” than that of courts. The appellants point to the Article 35 Reference as establishing that access to justice is a valid policy goal that can validate a grant of jurisdiction (although in the Article 35 Reference, this was discussed in the context of the core-jurisdiction test, and the grant was to an inferior court).

[98]         The respondent Trial Lawyers Association says the judge did not require the defendants to demonstrate efficacy; rather, he correctly found that the defendants did not demonstrate a “sufficient connection” between the granted jurisdiction and a broader policy goal of restructuring insurance benefits. And they argue that in any case, access to justice cannot be the policy goal that supports a grant of jurisdiction to an administrative tribunal: the language from the Article 35 Reference is applicable only as far as inferior courts.

C. Core Jurisdiction

[99]         The appellants argue that if the grant of jurisdiction passes the Residential Tenancies test and thus falls to be assessed under the core-jurisdiction test, it should be found constitutional. They say the multi-factor analysis weighs in favour of constitutionality because of (1) the limited scope of jurisdiction granted, (2) there is still robust involvement of the Supreme Court, (3) the $50,000 monetary limit is below the “updated historical ceiling” from the Article 35 Reference (which would be between $63,698 and $66,008 today, starting from a $100 limit at the time of Confederation), (4) there is judicial review as of right, which includes correctness review on questions of law, (5) the evidence is that the actual trial load of the Supreme Court is minimally affected by this transfer and the Supreme Court retains the opportunity to hear qualitatively important cases, and (6) the scheme is in pursuit of an important societal objective: access to justice.

[100]     The Trial Lawyers Association says the grant would be invalid under the core-jurisdiction analysis. They argue (1) this is a broad scope: the full range of negligence principles will be adjudicated at the CRT, (2) if the Supreme Court determines it should not take jurisdiction, it must transfer the case to the CRT, and the Supreme Court has no way of “calling up” cases that are filed directly at the CRT (3) that if $40 is taken as the starting point, rather than $100, the $50,000 monetary limit is “nearly double” the modern day equivalent, although acknowledging this is not determinative, (4) that protecting the tribunal’s findings of fact by the patent unreasonableness standard on judicial review “denude[s] the court of its power to meaningfully perform its superintending function on judicial review in relation to factual matters,” (5) that the impact on the Supreme Court caseload should not be based only on the matters that go to trial, but rather, how many cases are filed, and (6) the impugned provisions deny rather than enhance access to justice.

[101]     The Trial Lawyers Association submits two additional factors that they say further indicate that the core jurisdiction of the superior courts has been invaded. First, unlike an inferior court, the CRT does not have a constitutional guarantee of judicial independence. Second, the litigation in this field is effectively against the Insurance Corporation of British Columbia, an agent of the Crown. A provincially constituted administrative tribunal adjudicating disputes between private individuals and another provincial agent weighs against constitutionality of the grant of jurisdiction because oversight of the exercise of public powers is an element of the superior courts’ core jurisdiction.

VII. Analysis

[102]     The judge’s analysis below can be briefly summarized.

[103]     First, he characterized the grant of jurisdiction under the new legislative scheme as one encompassing “personal injury claims in tort.” Next, he proceeded to apply the Residential Tenancies test, finding that the jurisdiction so characterized was exclusively exercised by the superior courts in three of the four confederating provinces at the relevant time, namely, Nova Scotia, New Brunswick and Lower Canada.

[104]     Advancing to step two of the test, the judge concluded that the grant of jurisdiction was indeed exercised in the judicial capacity and that at step three of the test, the jurisdiction was not subsidiary or ancillary to an administrative function nor necessarily incidental to the achievement of a broader policy goal of the legislature.

[105]     Having arrived at those conclusions, the judge did not need to consider the “core jurisdiction” test.

A. Historical Considerations

[106]     In my view the judge erred in finding exclusivity (or dominance) in superior courts over the granted jurisdiction at or around the date of Confederation in respect to at least New Brunswick and he erred in his analysis at step three of the Residential Tenancies test in any event.

[107]     The matter was heard primarily below on the basis of Rule 9-6(5) of the Supreme Court Rules. The judge did have limited resort to Rule 9-7(2) and some factual findings with respect to the historical analysis: see Summary Reasons at paras. 180, 22331. Those findings of fact are not in dispute on appeal, only their significance to the constitutional question as a matter of law.

[108]     These considerations together with the fact that the judge did not have the benefit of the “core jurisdiction” test as refined by the court in the Article 35 Reference calls for a de novo analysis of the constitutionality of the impugned grant of jurisdiction.

[109]     I begin with the Residential Tenancies test. To repeat, the burden is on the partyhere the Trial Lawyers Associationimpugning the validity of the grant of jurisdiction. After characterizing the jurisdiction, there are three questions:

(1)             Does the transferred jurisdiction conform to a jurisdiction that was dominated by superior, district or county courts at the time of Confederation?

(2)             If so, was the jurisdiction in question exercised in the context of a judicial function?

(3)             If the first two questions are answered in the affirmative, is the jurisdiction either subsidiary or ancillary to an administrative function or necessarily incidental to the achievement of a broader policy goal of the legislature?

[110]     In my view the judge was correct to omit reference to the size of claim or the mode of injury in his characterization of the grant of jurisdiction. However, it may be more accurate to have characterized the jurisdiction as one involving “personal injury claims, including related property damage claims, in tort.” Whether we include the reference to related property damage claims does not materially change our analysis of step one of the Residential Tenancies test. Including reference to the related property damage claims slightly broadens the characterization, making a finding of concurrency even more readily available. While Professor Fyson was not asked to report on jurisdiction over property damage claims, his reportand more important, statutes from the timeindicates that inferior courts also had jurisdiction over damages to moveable, and sometimes real, property.

[111]     This characterization is in keeping with the guidance provided in Sobeys and other cases. And it avoids the inevitable inclination to include the monetary jurisdiction as a descriptive aspect of the characterization, as the suggestions of the appellants are contrary to the direction in the Article 35 Reference.

[112]     If one accretes every possible limiting modifier to a grant of jurisdiction, almost any grant can be characterized with such specificity that it would not broadly conform to jurisdiction exercised by any court at Confederation. The characterization must remain focused on the “type of dispute involved”: Residential Tenancies 1996 at para. 76; Article 35 Reference at para. 74.

[113]     Additional modifiers to include “motor vehicle accidents” as the subject matter would be superficial at this stage, in that the substantive law applicable to personal injury claims involving MVAs is not any different from the law applicable to personal injury claims arising from other modes of injury. Such a narrowing would be akin to the kind of narrowing that a monetary limit would provide: narrowing only the number of cases captured by the characterization, but not a substantive narrowing of the type of dispute being captured.

[114]     In light of this characterization of the jurisdiction, I also conclude that the judge was correct not to accept it as “novel” and not exercised by courts generally in and about 1867.

[115]     I also accept the judge’s conclusion with respect to the historical situation in Upper Canada and Nova Scotia in 1867.

[116]     Where the judge erred in my view was with respect to New Brunswick. One must conclude that during the essential time period around the date of Confederation there was concurrency in the exercise of the impugned jurisdiction in the superior and inferior courts of New Brunswick.

[117]     In my view, one is driven to this conclusion by Justice McLachlin’s judgment in Residential Tenancies 1996 and both the majority and dissents in the Article 35 Reference.

[118]     Dealing first with Residential Tenancies 1996, there the issue was the constitutionality of a grant of jurisdiction by Nova Scotia in residential tenancy matters to the Director of Residential Tenancies and the Residential Tenancies Board.

[119]     Justice McLachlin (as she then was) for a five-member majority said this of the date to be used in the exercise (at para. 79):

A fourth observation concerns the date at which the powers of the pre-s. 96 courts are to be determined. Are we to fix obdurately on the exact date of Confederation?  If an inferior tribunal enjoyed concurrency for many years only to have it removed days before Confederation, should that removal necessarily preclude finding concurrency?  Or should a more flexible approach be taken, one which examines the "general historical conditions" prevailing in the confederating provinces? (Sobeys, at p. 265.)  The purpose of the test for a transfer of s. 96 powers suggests that the latter approach is preferable. If the inferior courts did in fact exercise the jurisdiction in question reasonably contemporaneously with Confederation, there is no basis for concern that the present day derogation of those powers from the superior courts fails to accord with the unifying intent of the judicature compromises. The historical inquiry mandated by the first step of the test should be realistic and not arbitrarily swayed by the caprice of history. Results should not turn on technicalities such as the date a particular bill came into force. The concern is to ascertain whether the type of dispute at issue is broadly conformable to one which fell to be decided exclusively or predominantly by the superior courts at or about the time of Confederation. In Sobeys this Court indicated that the relevant date of assessment was the time when the “bargain was made”. Wilson J. referred to “jurisdiction in 1867" or “1867 jurisdiction”, but nowhere stipulated for one particular moment in time. La Forest J., also writing in Sobeys, cautioned against an overly mechanical application of the historical test in dealing with jurisdiction that is not amenable to precise definition (at pp. 288-89):

If one must pick a specific date to govern the inquiry, 1867 would seem to be appropriate, but even here I am not sure one should be so much concerned with precise dates as with avoiding incorporating into s. 96 court jurisdiction matters that may be specific to a province by reason of a situation peculiar to the province at the time. For what we are seeking after all is a generalized and workable meaning for the jurisdiction exercisable by s. 96 courts. …

[Emphasis added; emphasis from original removed.]

[120]     In respect of New Brunswick, this led Justice McLachlin to, in effect, discount the fact that shortly before the actual date of Confederation, the jurisdiction of the Inferior Courts of Common Pleas was curtailed. The judge continued:

The appellant contends that picking an arbitrary point in time in order to decide the outcome of the analysis in the first stage of the Residential Tenancies test places too much emphasis on historical happenstance, and that pre-confederation jurisdiction should be more generally evaluated. It follows from what I have said earlier that I accept that position. The lesson of Sobeys is that the goal is to find a “generalized and workable meaning for the jurisdiction exercisable by s. 96 courts” (pp. 288-89). Until 14 days before Confederation, a wide range of residential tenancy disputes were decided by the Court of Common Pleas. This was the situation at the time when the judicature provisions were being codified by the Fathers of Confederation, and it follows from the foregoing that in my view the test has been met in relation to New Brunswick.

[121]     In my view, in the face of this reasoning, Chief Justice Hinkson’s conclusion in this case at para. 201 of the summary reasons cannot be sustained. He reasoned:

… Active legislative steps were taken to establish specific and exclusive jurisdiction in the New Brunswick Superior Court preparatory to Confederation. In my view this was no caprice of history, but rather a deliberate decision to vest jurisdiction in what was about to become a s. 96 court, and place it there for the purpose of the interpretation and application of ss. 92(14) and 96 of the Constitution Act, 1867.

[122]     The judgments in the Article 35 Reference buttress the conclusion that the Chief Justice erred.

[123]     In its historical analysis the majority there referred to the limited involvement of inferior courts in Lower Canada in matters relating to contractual and extracontractual obligations (which would include claims in tort) (para. 76). However:

… In all the other provinces, however, inferior courts played a predominant role in the administration of civil justice. They had broad jurisdiction and heard between 80 percent (in Upper Canada and Nova Scotia) and 90 percent (in New Brunswick) of all civil cases (pp. 183, 192 and 198). In most of the provinces, therefore, there was sufficient practical involvement of the inferior courts in matters relating to contractual and extracontractual obligations.

[124]     In Chief Justice Wagner’s dissent, he noted of New Brunswick (para. 223):

In New Brunswick, the City Court of Saint John could hear civil disputes up to $80 (p. 137) and, until 1867, the Court of Common Pleas exercised jurisdiction concurrently with the New Brunswick Supreme Court in civil matters, without any monetary limits except in cases involving title to land (pp. 131‑33).

[125]     I note that the point made by Chief Justice Hinkson concerning the repeal shortly before 1 July 1867 of the jurisdiction enjoyed by the Inferior Courts of Common Pleas did not preclude Chief Justice Wagner from making his finding of concurrency in New Brunswick. The reasons of Abella J. are to similar effect.

[126]     All of this is to say that the thrust of guiding authority does not see the legislative changes to the jurisdiction of the inferior court in New Brunswick, on the very eve of Confederation, as affecting the concurrency analysis in respect of that province.

[127]     I note that Chief Justice Hinkson was also concerned that finding concurrency in New Brunswick would be “incompatible with Wilson J.’s refusal to find concurrency in New Brunswick in Sobeys Stores”: at para. 200, citing Sobeys at 268. In Sobeys, Wilson J. characterized the inferior court jurisdiction in New Brunswick as follows (at 268):

Jurisdiction over small debts, some unpaid wages, and seamen’s contracts were all given to inferior courts, but for the reasons noted above none of this can be equated to a general jurisdiction over unjust dismissal: see Of Regulations for Seamen, R.S.N.B. 1854, c. 86, s. 10; Of Regulations for Shipping Seamen at the Port of Saint John, R.S.N.B. 1854, c. 87, s. 9; Of the Jurisdiction of Justices in Civil Suits, R.S.N.B. 1854, c. 137, s. 1.

[128]     That indeed is more limited than the jurisdiction which was exercised by the Inferior Courts of Common Pleas. However, in support of that conclusion, Wilson J. cites some chapters in the revised statutes of New Brunswick from 1854. It is apparent from the First Report of the Commissioners, found in the introduction to the revised statutes, that the chapter relied upon in Sobeys entitled “Of the Jurisdiction of Justices in Civil Suits” was intended to be understood as “Of the jurisdiction of Justices of the Peace in civil suits” (emphasis added): R.S.N.B. 1854 at xi. The Commissioners also reported that “the third part [of the revised statutes], relating to Courts of Law, must necessarily be limited in extent, although whatever we conceived might not probably require revision has been inserted”: R.S.N.B. 1854 at x. The Commissioners who compiled the 1854 revision did not include a chapter reflecting the jurisdiction of the Inferior Courts of Common Pleas set out in An Act to consolidate and amend the Laws to provide for the administration of Justice in the Inferior Courts of Common Pleas and General Sessions of the Peace, S.N.B. 1850 (13 Vict.), c. 47 [1850 ICCP Act].

[129]     I say that to explain why the Court in Sobeys viewed the jurisdiction of inferior courts in New Brunswick to be so limited at confederation. They appear to have relied upon an incomplete description of the inferior courts’ jurisdiction. Neither the judgment of the Supreme Court of Canada nor the judgment of the Appeal Division of the Nova Scotia Supreme Court in Sobeys referred to the 1850 ICCP Act which provided the broad jurisdiction granted to the Inferior Courts of Common Pleas. This leaves open the alternative finding here just as it was open to the Supreme Court of Canada in the Article 35 Reference. In the end, a finding of concurrency would not have changed the result in Sobeys, given that the Court upheld the grant of jurisdiction at step three of the Residential Tenancies test.

[130]     With a finding of concurrency in Upper Canada, this leads at least to a 2-2 “tie.” As the Trial Lawyers Association did not lead evidence of the situation in the United Kingdom in 1867 to “break the tie” (see Sobeys at 271) they have not met their burden and the grant of jurisdiction survives an application of the Residential Tenancies test. This means I need not review the judge’s decision in concluding that there was exclusivity in Lower Canada notwithstanding the historical debate in that regard.

[131]     This brings us to an application of the “core jurisdiction” test as refined by the majority in the Article 35 Reference. Recall there are multiple purposes for this second test. One is that for broad grants of jurisdiction, such as in the Article 35 Reference, the Residential Tenancies test cannot be readily applied: see Article 35 Reference at para. 77; see also discussion above at para. 50. Another is that “even if no parallel court is created, the superior courts could be impaired to such an extent that they can no longer play their constitutional role”: Article 35 Reference at para. 63.

B. Core Jurisdiction Test

[132]     Before embarking on the test, it is helpful to sketch out the scheme in operation. Here I trace the path that a claim would follow for maximal involvement of Supreme Court in a suit for liability and damages resulting from a hypothetical minor injury (the statutory category) caused by a motor vehicle accident.

[133]     The plaintiff will file a notice of civil claim at the Supreme Court. While it would be open to the plaintiff to initiate a proceeding at the CRT instead, the incentive for a plaintiff seeking a damages award above the tribunal limit amount or having the matter decided by the Supreme Court is for them to initiate the proceeding at the Supreme Court. Indeed, this is consistent with the posture of the parties in this litigation.

[134]     The defendant will allege that the proceeding relates to a minor injury. This triggers s. 16.1(2)(a) of the CRTA, which requires the Supreme Court to stay the proceeding until the CRT determines whether the injury is in fact a minor injury.

[135]     The tribunal will determine that the injury is a minor injury. This triggers a presumption under s. 135 of the CRTA that the amount that will be awarded is less than or equal to the tribunal limit amount “unless a party establishes on the basis of satisfactory evidence that there is a substantial likelihood that the damages will exceed the tribunal limit amount.”

[136]     The defendant will then ask the Supreme Court for a stay pursuant to s. 16.1(2)(b). This requires the Supreme Court to stay proceedings until the tribunal determines whether the plaintiff establishes that there is a “substantial likelihood that damages will exceed the tribunal limit amount,” “unless it is not in the interests of justice and fairness for the tribunal to make the determination.”

[137]     If the Supreme Court agrees that it is not in the interests of justice and fairness for the CRT to adjudicate the presumption rebuttal, it can retain jurisdiction to adjudicate the presumption rebuttal. This is either a necessary corollary of s. 16.1(2)(b) which provides that the Supreme Court need not order the stay, or it could result from an order under 16.2(1)(b) that the tribunal “not adjudicate a claim” if “it is not in the interests of justice and fairness for the tribunal to adjudicate the claim.”

[138]     If the presumption that damages are within the tribunal limit amount is rebutted, then the tribunal must cede jurisdiction and the Supreme Court can assume jurisdiction over adjudication of liability and damages: CRTA, ss. 11(1)(e), 16.4(1)(b)(ii).

[139]     If the presumption is not rebutted, the tribunal is deemed to have “specialized expertise” “in respect of claims described in [s. 133(1)(c)]”: CRTA, s. 133(2)(b). The Supreme Court is generally required to dismiss the proceeding at that point: CRTA, s. 16.1(b).

[140]     However, the plaintiff could still allege that it is not in the interests of fairness and justice for the CRT to adjudicate the liability and damages: CRTA, s. 16.1(1)(b). If the Supreme Court agrees, then it is not required to dismiss the claim. It could instead order the tribunal to not adjudicate the claim and assume jurisdiction over the claim: CRTA, ss. 16.2(1)(b), 16.4(1)(c).

[141]     In the path just described, there are three decisions potentially made by the tribunal:

a)    the determination of whether the injury is a minor injury;

b)    the determination of whether the presumption that the damages are within the tribunal limit amount has been rebutted (the presumption rebuttal); and

c)     the ultimate adjudication of the liability and damages to be awarded.

[142]     On judicial review, these decisions attract different degrees of scrutiny. This is because of the different levels of exclusivity and/or expertise that the tribunal is deemed to have over these matters: see CRTA, s. 133(2). The tribunal has exclusive jurisdiction over the determination of whether the injury is a minor injury. The tribunal has specialized expertise “in respect of claims described in subsection (1)(c) of this section.”

[143]     I read the “specialized expertise in respect of claims described in subsection (1)(c)” to include the determination of whether the presumption has been rebutted. See e.g., Nowegijick v. The Queen, [1983] 1 S.C.R. 29 at 39 (interpreting the phrase in respect of to have the “widest possible scope”).

[144]     I will summarize below the standards of review applicable to these decisions but I now return to the test.

[145]     Recall that the majority in the Article 35 Reference stressed the need for superior courts to enjoy a significant role in the development of the private law. The jurisdiction of the superior courts over private law matters “must be accompanied by a subject matter jurisdiction that is broad enough to preserve the superior courts’ role in providing jurisprudential guidance in private law”: at para. 86. While the provinces may assign a portion of private law fields to courts it appoints (and I add, to tribunals), those provinces must not alter the superior court’s essence “making it something less than a superior court”: para. 86, quoting MacMillan Bloedel at para. 1.

[146]     The majority then provided a non-exclusive list of six factors that help determine whether a provincial scheme crosses the prohibited “line”:

(i)       the scope of the jurisdiction being granted;

(ii)      whether the grant is exclusive or concurrent;

(iii)      the monetary limits to which it is subject;

(iv)     whether there are mechanisms for appealing decisions rendered in the exercise of the jurisdiction;

(v)      the impact on the caseload of the superior court of general jurisdiction;

(vi)     whether there is an important societal objective (in the grant of jurisdiction).

(vi) Important Societal Objective

[147]     I will deal with each of these factors in turn but I will begin with the last factoran important societal objective. It is likely error to give any one factor predominance in the analysis but to my mind this factor is a very significant one when one accepts Chief Justice Wagner’s concern with not interfering “with the ability of the provinces and territories to experiment with new forms of access to civil justice.”

[148]     The need for “experimentation”for innovationin access to civil justice for victims of minor injuries suffered in motor vehicle accidents in British Columbia is self-evident in light of the EY Report. That report makes clear that the existing system of compensating for minor personal injuries in tort is threatening the viability of the public insurer, ICBC, and equally the actual compensation recovered by the victims of these minor injuries. In this latter regard, “In BC today, claimants receive less than 60% of their premium as benefits, with the remainder going to scheme costs including legal costs and disbursements. Best-in-class schemes around the world return approximately 80% of premiums as benefits to claimants”: EY Report at 54. I note that the EY report does not break this down specifically for minor injuries. It highlighted that more was being distributed as legal costs (24%) than to minor injuries (20%) or non-minor injuries (17%).

[149]     In light of the EY Report, one can only conclude that there were serious issues facing British Columbia with the tort regime in place before the legislative action before the court was taken.

[150]     If my tone suggests that I have concluded that the concerns identified by the EY Report and the executive branch are well-founded, I hasten to say that this judgment is not the remit of this Court. It is for the legislative branch to so conclude. I am concerned only with determining if there is a rational basis for the concerna rational basis for the societal objectives evidenced in the legislative reforms before the Court. On the basis of the evidentiary record, and in particular the EY Report, there most certainly is. It is not for the Court to pass on whether the legislature “got it right” with its reforms. It is not for this Court to say whether the Civil Resolution Tribunal will actually perform as promised. In this regard the evidence of Professors Daly and Susskind provides a rational basis for the legislature believing it to be so. With respect to the judge below, it is not for us to require the appellants to prove the efficacy of the “solutions” the legislature is applying to the problems it has identified.

[151]     A review of Tomko and Sobeys reveals the standard to which the government has been held (albeit in the context of step three of the Residential Tenancies test). The government has not been required to demonstrate efficacy of the granted jurisdiction in achieving the broader policy objective to which it might be necessarily incidental. Rather, there need only be a rational basis to believe the granted jurisdiction is necessarily incidental.

[152]     In Tomko, the Nova Scotia Labour Relations Board was given the power to issue orders to cease and desist illegal work stoppages, including lockouts and strikes. The majority (with reasons from Laskin C.J.), held that this power to issue cease-and-desist orders did not offend s. 96. The power was “thought necessary to enable the administrative agency to deal with illegal strikes or lockouts by exercising a remedial authority to induce or compel a settlement of the dispute which led to the unlawful activity or peremptorily to bring that activity to an end by an interim cease and desist order” (emphasis added): at 124–125. And at 122:

… The policy considerations are evident, and in pursuit thereof the mechanism of a cease and desist order to restore the lawful status quo ante seems to me to be a rational way of dealing administratively with a rupture of peaceful labour relations.

[Emphasis added.]

[153]     To the same effect is Sobeys (at 27881).

[154]     This notion has been repeated in the Article 35 Reference:

[126]    … it is not enough to allege that there is an important societal objective; it is also necessary to show that the objective is real and that there is a connection between the grant of jurisdiction to a court with provincially appointed judges and the achievement of the objective. …

[155]     These decisions are not dependent upon inquiries into efficacy. The Court has looked for a legislative goal and some rational relation between that goal and the granting of the impugned jurisdiction to the tribunal.

[156]     Here, the required connection has been demonstrated.

[157]     There are certainly multiple overlapping motivations that led the legislative branch to enact the impugned scheme, including the goal of keeping ICBC premiums in line with inflation. But, while cost reduction may have been part of the legislative motivation, it is important that the CRT has not been directed to reduce ICBC’s costs. See CRTA, s. 2:

2    …

(2)  The mandate of the tribunal is to provide dispute resolution services in relation to matters that are within its authority, in a manner that

(a)  is accessible, speedy, economical, informal and flexible,

(b)  applies principles of law and fairness, and recognizes any relationships between parties to a dispute that will likely continue after the tribunal proceeding is concluded,

(c)  uses electronic communication tools to facilitate resolution of disputes brought to the tribunal, and

(d)  accommodates, so far as the tribunal considers reasonably practicable, the diversity of circumstances of the persons using the services of the tribunal.

(3)  In fulfilling its mandate, the role of the tribunal is

(a)  to encourage the resolution of disputes by agreement between the parties, and

(b)  if resolution by agreement is not reached, to resolve the dispute by deciding the claims brought to the tribunal by the parties.

(4)  In addition to its responsibilities in relation to disputes brought to the tribunal for resolution, the tribunal may

(a)  provide the public with information on dispute resolution processes generally, and

(b)  make its online dispute resolution services available to the public generally.

[158]     In his Summary Reasons the judge noted the plaintiffs’ argument that the CRT’s judicial powers are not necessarily incidental to the achievement of its motor vehicle insurance related objectives, including those pertaining to road safety, premiums and benefits: para. 373. The judge concluded (at para. 374):

I accept the plaintiffs’ point that insofar as the argument that the CRT’s impugned power is necessarily incidental to the achievement of its motor vehicle insurance-related objectives, there is an absence of any meaningful explanation of the actual interrelationship between the impugned grant and the substantive content of the scheme to support the assertion that the CRT is “necessarily incidental” to any of the substantive or policy measures.

[159]     But the EY Report, as I have summarized it, simply belies this assertion, and it clearly ties the creation of an alternative dispute resolution forum to the suite of reforms it advances.

[160]     I digress to discuss in slightly more detail the breadth of the scheme created by the relevant legislative provisions.

[161]     As described above, a determination by the CRT that an injury is a minor injury has two downstream effects: (1) a cap on non-pecuniary damages (see IVA s. 103; Minor Injury Regulation, s. 6); and (2) a presumption that the amount that will be awarded for a minor injury is less than or equal to the tribunal limit amount (see CRTA, s. 135).

[162]     While those are the effects most relevant for understanding the technical nature of the jurisdiction that has been assigned to the CRT, other aspects of the minor-injury scheme are relevant for understanding the context in which the CRT is exercising this jurisdiction. The Minor Injury Regulation sets out a diagnosis, referral, and treatment regime that applies when a physician believes their patient may have suffered a minor injury. This regime is not contingent on a CRT determination. It also does not apply to accidents occurring on or after 1 May 2021.

[163]     For example, subsection 10(1) of the Minor Injury Regulation provides:

10   …

(1)     A physician whose patient may have suffered a minor injury in an accident must consider, no later than 90 days after the date of the accident that caused the injury, referring the patient to a registered care advisor if one or more of the following circumstances apply:

(a)     the physician is unable to make a clear diagnosis;

(b)     the patient is not recovering from the injury as expected by the physician;

(c)     there are factors complicating the patient’s recovery from the injury.

[164]     The regulation also provides for the establishment of a registry of registered care providers who are “knowledgeable in evidence-informed practice with specific competencies in the assessment and treatment of (i) musculoskeletal injuries, (ii) acute and chronic pain, or (iii) mental health issues and other psychosocial issues” (formatting removed): Minor Injury Regulation, s. 8.

[165]     This diagnosis and treatment scheme intersects with the CRT’s jurisdiction where a claimant fails to seek a diagnosis or fails to comply with the diagnostic and treatment protocol and what was initially a minor injury develops into a non-minor injury. In such a circumstance, the injury is deemed to be a minor injury: IVA, ss. 101(2)–(3).

[166]     It will be seen that the legislative reforms generally create a regime for the identification, and management of, and compensation for, “minor injuries” suffered in motor vehicle accidents in B.C.a “cradle to grave” approach to addressing this aspect of personal injury in our province.

[167]     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.

[168]     I interject to say that if I am wrong on the step-one analysis under the Residential Tenancies test, then these considerations just discussed above will lead ineluctably to a conclusion that the impugned jurisdiction is necessarily incidental to the achievement of a broader goal of the legislature. Accordingly, the scheme would be saved at step three of the Residential Tenancies test.

[169]     I return to the core jurisdiction test and the remaining factors.

(i) Scope of Jurisdiction

[170]     The jurisdiction centers on “minor injuries” suffered in motor vehicle accidents in British Columbia. It is not an insignificant scope of jurisdiction but it is discreet. “Minor injury” is defined in the applicable legislation (IVA, s. 101):

"minor injury" means a physical or mental injury, whether or not chronic, that

(a)        subject to subsection (2), does not result in a serious impairment or a permanent serious disfigurement of the claimant, and

(b)        is one of the following:

(i)         an abrasion, a contusion, a laceration, a sprain or a strain;

(ii)        a pain syndrome;

(iii)       a psychological or psychiatric condition;

(iv)       a prescribed injury or an injury in a prescribed type or class of injury;

[171]     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.

[172]     Clearly a broad and important field of tort claims and the compensatory regime in respect thereof is left to the superior courts in British Columbia. 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 under the impugned scheme.

[173]     In my view this factor favours the scheme.

(ii) Concurrency or Exclusivity of the Grant

[174]     In respect of many claims coming within the “minor injury” category, the grant of jurisdiction will, practically, be exclusive. But there is a “safety valve” in favour of the Supreme Court of British Columbia where, as described, that court determines it is not in the interests of justice and fairness for the tribunal to make the determination. This allows the Supreme Court to retain jurisdiction over the rebuttal of the monetary presumption and to retain jurisdiction over the ultimate determination of liability and damages.

[175]     In my view, a consideration of this factor does not favour a conclusion invalidating the impugned scheme.

(iii) The Monetary Limits

[176]     Following the methodology used in the Article 35 Reference, at $50,000 the tribunal limit is comparable to the modern-day equivalent of the jurisdiction which at least some of the inferior courts enjoyed at Confederation ($100) and it is not dramatically higher than that of others. And that comparative exercise does not even consider the monetarily unlimited jurisdiction of the Inferior Courts of Common Pleas in New Brunswick. In my view, a consideration of this factor does not favour invalidating the scheme.

(iv) Appeal Mechanisms

[177]     There is no right of appeal in the traditional sense from decisions of the CRT although judicial review is available in the circumstances I have indicated.

[178]     My summary of the applicable standards of review is set out in this table. Again, I note that strictly speaking only the scheme as of 1 April 2019 is before the court:

TABLE 1: Standards of review on judicial review of CRT decisions.

 

1 April 2019

28 October 2021

Minor injury categorization

Questions of fact or law

Patent unreasonableness

Patent unreasonableness

Presumption rebuttal

Questions of fact

Correctness*

Reasonableness

Questions of law

Correctness

Correctness

Liability

Questions of fact

Reasonableness

Reasonableness

Questions of law

Correctness

Correctness

Damages

Questions of fact

Correctness*

Reasonableness

Questions of law

Correctness

Correctness

*       Due to the ATA, s. 58(2)(c) “loophole” which resulted in correctness review for questions of fact for matters decided in respect of s. 133(1)(c), other than liability; described above at para. 35.

    “Reasonableness” here being shorthand for the statutory language: a court must not set aside a finding of fact unless “[t]here is no evidence to support [the finding], or… in light of all the evidence, the finding is otherwise unreasonable”. See CRTA, s. 56.8 (as of 28 October 2021); ATA, s. 59(2).

 

Note: There are of course other standards of review for discretionary decisions and for applications of the common law rules of natural justice and procedural fairness. The above is intended to show the parallel with the appellate standard of review on questions of liability and damages.

 

[179]     In my view, this is a sufficiently robust appellate review regime. A consideration of this factor does not favour invalidating the scheme.

(v) Impact on Supreme Court’s Caseload

[180]     There is no doubt that a very significant number of “minor injury” motor vehicle accident claims are filed each year in the Supreme Courtsome 24,546 in the year 2019. Still, only a very small percentage, approximately 200, actually go to trial in that court in an average year. I do not agree with the appellants that this latter number is the relevant number under this factor but 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. This is not the wholesale transfer of an exceedingly broad jurisdiction as was the case in the Article 35 Reference. To be colloquial, the scheme here will not result in any “layoffs” in the Supreme Court. It will continue to have a very robust role in the development of the law in this area as contemplated by the objectives underlying s. 96.

VIII. Disposition

[181]     In brief compass, a review and weighing of the non-exhaustive list of factors relevant in the test leads me to conclude that the core jurisdiction of the Supreme Court of British Columbia remains in place even in the face of the new scheme. Its “essence” as a superior court of general jurisdiction remains. I would allow the appeal and strike out the declarations below.

[182]     The respondents also cross-appeal, asking for an order declaring s. 7 of the Accident Claims Regulation (which sets the tribunal limit amount to $50,000) to be unconstitutional and of no force or effect. They acknowledge that this issue need not be addressed as long as this Court considers their arguments about the monetary limit as going to the constitutionality of the CRT’s jurisdiction over MVA claims. In these reasons, I have considered the entire implementing scheme, including s. 7 of the Accident Claims Regulation, in concluding that the grant of jurisdiction is constitutional. I would dismiss the cross-appeal.

“The Honourable Chief Justice Bauman”

I agree:

“The Honourable Mr. Justice Butler”


 

Reasons for Judgment of the Honourable Madam Justice Bennett:

[183]     I have had the opportunity to read Chief Justice Bauman’s draft reasons for judgment. I agree that Chief Justice Hinkson erred in his application of the Residential Tenancies test. However, I do not agree with Bauman C.J.B.C.’s conclusion that the core jurisdiction of the court has not been impermissibly infringed. In my view, the transfer of the jurisdiction at issue to the CRT has dealt a deep blow to the jurisdiction of the superior court.

[184]     Chief Justice Bauman has set out the background of the appeal and the law, which I will not repeat except where it is necessary for my analysis.

I. Residential Tenancies Test

[185]     I agree with Hinkson C.J.S.C., that what is being examined is properly characterized as personal injury claims in tort. Chief Justice Bauman expanded that definition to include related property damage. I would not expand the definition in that manner, but I do not see it makes a difference in the analysis.

[186]     I agree with Bauman C.J.B.C that Hinkson C.J.S.C. erred at the first step of the Residential Tenancies test when he concluded that personal injury in tort was in the exclusive jurisdiction of the superior courts in New Brunswick.

[187]     Chief Justice Hinkson concluded that when New Brunswick abolished the Inferior Courts of Common Pleas shortly before Confederation on July 1, 1867, that left no inferior court in that province exercising jurisdiction over personal injury claims in New Brunswick. He concluded that the comments of McLachlin J. (as she then was) in Residential Tenancies 1996 did not preclude a finding that the intent of the legislature in New Brunswick was “a deliberate decision to vest jurisdiction in what was about to become a s. 96 court” (Summary Reasons at para. 201). I have some sympathy for the conclusion reached by Hinkson C.J.S.C., as the normal rules of statutory interpretation might lead one to the conclusion that, by amending the legislation in advance of a known significant event, the legislature intended to establish certain matters in the s. 96 courts. However, that is not what McLachlin J. concluded in Residential Tenancies 1996. She found, at paras. 79 and 83:

[79]      A fourth observation concerns the date at which the powers of the pre-s. 96 courts are to be determined. Are we to fix obdurately on the exact date of Confederation? If an inferior tribunal enjoyed concurrency for many years only to have it removed days before Confederation, should that removal necessarily preclude finding concurrency? Or should a more flexible approach be taken, one which examines the “general historical conditions” prevailing in the confederating provinces? (Sobeys, at p. 265.)  The purpose of the test for a transfer of s. 96 powers suggests that the latter approach is preferable. If the inferior courts did in fact exercise the jurisdiction in question reasonably contemporaneously with Confederation, there is no basis for concern that the present day derogation of those powers from the superior courts fails to accord with the unifying intent of the judicature compromises. The historical inquiry mandated by the first step of the test should be realistic and not arbitrarily swayed by the caprice of history. Results should not turn on technicalities such as the date a particular bill came into force. The concern is to ascertain whether the type of dispute at issue is broadly conformable to one which fell to be decided exclusively or predominantly by the superior courts at or about the time of Confederation. In Sobeys this Court indicated that the relevant date of assessment was the time when the “bargain was made”. Wilson J. referred to “jurisdiction in 1867” or “1867 jurisdiction”, but nowhere stipulated for one particular moment in time. La Forest J., also writing in Sobeys, cautioned against an overly mechanical application of the historical test in dealing with jurisdiction that is not amenable to precise definition (at pp. 288-89):

If one must pick a specific date to govern the inquiry, 1867 would seem to be appropriate, but even here I am not sure one should be so much concerned with precise dates as with avoiding incorporating into s. 96 court jurisdiction matters that may be specific to a province by reason of a situation peculiar to the province at the time. For what we are seeking after all is a generalized and workable meaning for the jurisdiction exercisable by s. 96 courts. [Emphasis added by McLachlin J.]

[83]      The appellant contends that picking an arbitrary point in time in order to decide the outcome of the analysis in the first stage of the Residential Tenancies test places too much emphasis on historical happenstance, and that pre-confederation jurisdiction should be more generally evaluated. It follows from what I have said earlier that I accept that position. The lesson of Sobeys is that the goal is to find a “generalized and workable meaning for the jurisdiction exercisable by s. 96 courts” (pp. 288-89). Until 14 days before Confederation, a wide range of residential tenancy disputes were decided by the Court of Common Pleas. This was the situation at the time when the judicature provisions were being codified by the Fathers of Confederation, and it follows from the foregoing that in my view the test has been met in relation to New Brunswick.

[188]     That conclusion appears to have been applied in the Article 35 Reference at para. 76, where the majority found that inferior courts in New Brunswick, at the time of Confederation, heard 90 percent of all civil cases.

[189]     The respondents submit that the observations of McLachlin J. should be construed narrowly, and limited to tenancies. In my view, McLachlin J.’s conclusion is an interpretation that is binding authority on this Court, and it has not been distinguished by the respondents.

[190]     I also agree with Bauman C.J.B.C.’s reasons that Hinkson C.J.S.C. was correct in concluding that the jurisdiction exercised by the CRT is not novel.

[191]     As a result, in my view, the order of Hinkson C.J.S.C. cannot stand on the basis that he found. Chief Justice Hinkson did not address the issue of core jurisdiction. Normally, I would remit the case to the Chief Justice to consider the core jurisdiction test. However, this Court is in as good a position to decide the core jurisdiction issue. It was fully argued; the parties sought a ruling in this Court; and the evidence was in the form of affidavits. It is in the core jurisdiction analysis that I part company with Bauman C.J.B.C.

II. The Core Jurisdiction

[192]     The core jurisdiction test, first introduced in MacMillan Bloedel, is described in the Article 35 Reference as follows:

[65]      To preserve the essence of the superior courts, this Court therefore added a second test to the analysis of constitutionality under s. 96. It held that when the core jurisdiction of superior courts is affected, courts must ask whether the legislation has the effect of removing any of the attributes of the superior courts’ core jurisdiction (MacMillan Bloedel, at paras. 18 and 27). Core jurisdiction includes “critically important jurisdictions which are essential to the existence of a superior court of inherent jurisdiction and to the preservation of its foundational role within our legal system” (Reference re Residential Tenancies Act (N.S.), at para. 56, per Lamer C.J., concurring). These defining features enable a superior court “to fulfil itself as a court of law” (MacMillan Bloedel, at paras. 30, 35 and 38 (emphasis deleted), quoting I. H. Jacob, “The Inherent Jurisdiction of the Court” (1970), 23 Current Legal Problems 23, at p. 27). Their “inherent” nature is attributable to the fact that they are derived not from legislation, but “from the very nature of the court as a superior court of law” (para. 30, quoting Jacob, at p. 27). If such an attribute is removed, the measure is unconstitutional. 

[66]          In addition to calling a removal of jurisdiction into question, this new doctrine operates to prevent the creation of parallel courts, like the Residential Tenancies test also does. The core jurisdiction test prevents the legislature from transferring to other courts the features that are essential to the role of the superior courts as the centrepiece of the unitary justice system and the primary guardians of the rule of law, for such transfers could transform those other courts into mirrors of the superior courts. The prohibition against parallel courts and the protection of the superior courts’ core jurisdiction are thus closely related; the creation of parallel courts affects the superior courts’ essential functions and place in the judicial system, thereby undermining or usurping their role and exceeding the limits imposed by s. 96. However, the core jurisdiction test does not merely place limits on what can be transferred to other courts. It also curbs impermissible interference by the legislature with the exercise of the jurisdiction and powers that constitute the very essence of the superior courts in order to prevent these courts from being “maim[ed]” (MacMillan Bloedel, at para. 37).

[67]          The emergence of a test protecting core jurisdiction thus marks a change in direction. Unlike the Residential Tenancies test, the core jurisdiction analysis is not primarily historical in nature. It is the very essence of the superior courts that is protected. The content of the core jurisdiction is therefore not limited to what the superior courts exercised exclusively at the time of Confederation. It extends to whatever is needed in order to preserve the vigour and strength of those courts. The protected powers and jurisdiction are solidly anchored in the role the superior courts are called upon to play in the maintenance of the rule of law in our unitary justice system (MacMillan Bloedel, at paras. 37‑38 and 41).

[193]     As the majority explained in the Article 35 Reference at para. 71, one of the purposes underlying both the Residential Tenancies test and the core jurisdiction test is to prohibit the creation of parallel courts.

[194]     Having set out the test and its purpose, I return to the amendments in question. Prior to the amendments, the superior court and the provincial court shared jurisdiction over personal injury claims, with the cap of $35,000 in the provincial court. The provincial court did not have exclusive jurisdiction over claims under $35,000; however, there were cost consequences to a litigant who commenced their action in the superior court when the award was within the small claims court jurisdiction (Supreme Court Civil Rules, B.C. Reg. 169/2009, r. 14‑1(10)).

[195]     On the other hand, under the amendments to the CRTA, the CRT has exclusive jurisdiction for personal injury actions arising from motor vehicle claims under $50,000 and the CRT determines if the case falls within the jurisdiction:

133      (1) Except as otherwise provided in section 113 [restricted authority of tribunal] or in this Division, the tribunal has jurisdiction in a dispute, in respect of an accident, over a claim concerning one or more of the following:

(a)        the determination of entitlement to benefits paid or payable under the Insurance (Vehicle) Act;

(b)        the determination of whether an injury is a minor injury for the purposes of the Insurance (Vehicle) Act;

(c)        liability and damages, if the amount, including loss or damage to property related to the accident but excluding interest and any expenses referred to under section 49 [order for payment of expenses], is less than or equal to the tribunal limit amount.

(2) For the purposes of this Act, the tribunal

(a)        has exclusive jurisdiction in respect of claims described in subsection (1) (a) or (b) of this section, and

(b)        is to be considered to have specialized expertise in respect of claims described in subsection (1) (c) of this section.

(3) For certainty, a person may make a request for tribunal resolution in more than one tribunal proceeding relating to an accident.

[196]     Section 16.1 of the CRTA sets out the mandatory procedure the Supreme Court (or Provincial Court) must follow if the claim falls within the CRT jurisdiction:

16.1   (1) Subject to subsection (2) and section 16.4 (1) and (2) [bringing or continuing claim in court], if, in a court proceeding, the court determines that all matters are within the jurisdiction of the tribunal, the court must,

(a)        in the case of a claim within the exclusive jurisdiction of the tribunal, dismiss the proceeding,

(b)        in the case of a claim in respect of which the tribunal is to be considered to have specialized expertise, dismiss the proceeding unless it is not in the interests of justice and fairness for the tribunal to adjudicate the claim, or

(c)        in any other case, stay or dismiss the proceeding, as the court considers appropriate, unless it is not in the interests of justice and fairness for the tribunal to adjudicate the claim.

(2) Subject to section 16.4 (1) and (2), if, in a court proceeding, a party alleges that a matter in a proceeding before the court relates to a minor injury within the jurisdiction of the tribunal under section 133 (1) (b) or (c) [claims within jurisdiction of tribunal for accident claims], the court must stay the proceeding until the tribunal determines, as applicable,

(a)        in the case of an accident claim under section 133 (1) (b), whether an injury is a minor injury, and

(b)        in the case of an accident claim under section 133 (1) (c), unless it is not in the interests of justice and fairness for the tribunal to make the determination, whether a party has established that there is a substantial likelihood that damages will exceed the tribunal limit amount.

(3) For the purposes of subsection (2), “minor injury” and “tribunal limit amount” have the same meaning as in section 132 [definitions for Division – accident claims].

16.2   (1) Subject to subsection (2), the court may order that the tribunal not adjudicate a claim that is or purports to be in one of the claim categories if

(a)        the tribunal does not have jurisdiction to adjudicate the claim, or

(b)        it is not in the interests of justice and fairness for the tribunal to adjudicate the claim.

(2) Subsection (1) (b) does not apply if the tribunal has exclusive jurisdiction in respect of the claim.

16.3   (1) For the purposes of sections 16.1 (1) and 16.2 (1), when deciding whether it is in the interests of justice and fairness for the tribunal to adjudicate a claim, the court may consider the following:

(a)        whether an issue raised by the claim or dispute is of such importance that the claim or dispute would benefit from being adjudicated by that court to establish a precedent;

(b)        whether an issue raised by the claim or dispute relates to a constitutional question or the Human Rights Code;

(c)        whether an issue raised by the claim or dispute is sufficiently complex to benefit from being adjudicated by that court;

(d)        whether all of the parties to the claim or dispute agree that the claim or dispute should not be adjudicated by the tribunal;

(e)        whether the claim or dispute should be heard together with a claim or dispute currently before that court;

(f)         whether the use of electronic communication tools in the adjudication process of the tribunal would be unfair to a party in a way that cannot be accommodated by the tribunal.

(2) For the purposes of section 16.1 (2), when deciding whether it is in the interests of justice and fairness for the tribunal to make the determination referred to in that subsection, the court may consider the principle of proportionality.

[Emphasis added.]

[197]     A “minor injury” is defined in s. 101 of the IVA:

“minor injury” means a physical or mental injury, whether or not chronic, that

(a) subject to subsection (2), does not result in a serious impairment or a permanent serious disfigurement of the claimant, and

(b) is one of the following:

(i) an abrasion, a contusion, a laceration, a sprain or a strain;

(ii) a pain syndrome;

(iii) a psychological or psychiatric condition;

(iv) a prescribed injury or an injury in a prescribed type or class of injury;

[Emphasis added.]

[198]     The Minor Injury Regulation prescribes the following as minor injuries pursuant to s. 101(b)(iv) of the IVA:

Prescribed injury for definition of “minor injury”

2   The following injuries are prescribed injuries for the purposes of paragraph (b) (iv) of the definition of “minor injury” in section 101 (1) of the Act:

(a) a concussion that does not result in an incapacity;

(b) a TMJ disorder;

(c) a WAD injury.

[199]     And in the definition section of the Minor Injury Regulation:

“TMJ disorder” means an injury that involves or surrounds the temporomandibular joint;

“WAD injury” means a whiplash associated disorder other than one that exhibits one or both of the following:

(a) decreased or absent deep tendon reflexes, deep tendon weakness or sensory deficits, or other demonstrable and clinically relevant neurological symptoms;

(b) a fracture to or dislocation of the spine.

[200]     Thus, as explained below, the legislature has deemed a number of serious injuries as “minor injuries”. This includes a pain syndrome (IVA, s. 101(1)(b)(ii)), which is defined in the Minor Injury Regulation as including pain that is not resolved within three months. It also includes a psychological or psychiatric condition (s. 101(1)(b)(iii)), as long as it is resolved within 16 weeks or is not the primary reason that an individual substantially cannot perform the essential tasks of their employment, education or daily living. “Serious impairment” does not arise until an injury continues to not be resolved after a year (s. 101(1)). In short, living with years of pain or mental illness—as long as it is not the primary reason for one’s inability to work, study, or live—is still considered a “minor” injury. Even chronic injuries can be “minor injuries”, despite the observations in Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, 2003 SCC 54 at para. 1:

Chronic pain syndrome and related medical conditions have emerged in recent years as one of the most difficult problems facing workers’ compensation schemes in Canada and around the world. There is no authoritative definition of chronic pain. It is, however, generally considered to be pain that persists beyond the normal healing time for the underlying injury or is disproportionate to such injury, and whose existence is not supported by objective findings at the site of the injury under current medical techniques. Despite this lack of objective findings, there is no doubt that chronic pain patients are suffering and in distress, and that the disability they experience is real. While there is at this time no clear explanation for chronic pain, recent work on the nervous system suggests that it may result from pathological changes in the nervous mechanisms that result in pain continuing and non-painful stimuli being perceived as painful. These changes, it is believed, may be precipitated by peripheral events, such as an accident, but may persist well beyond the normal recovery time for the precipitating event. Despite this reality, since chronic pain sufferers are impaired by a condition that cannot be supported by objective findings, they have been subjected to persistent suspicions of malingering on the part of employers, compensation officials and even physicians. Ruth Laseur and Donald Martin are the appellants in this case. Both suffer from the disability of chronic pain.

[201]     At issue here are the grants in ss. 133(1)(b) and (c) of the CRTA. These provisions grant the CRT exclusive jurisdiction over “the determination of whether an injury is a minor injury for the purposes of the Insurance (Motor Vehicle) Act” (s. 133(1)(b)). The tribunal is deemed to have specialized expertise over “liability and damages, if the amount, including the loss or damages to property related to the accident […] is less or equal to the tribunal limit amount” (s. 133(1)(c)).

[202]     The legislation grants the CRT exclusive jurisdiction over minor injury claims—and it is the CRT that decides whether a claim is one with respect to a minor injury in the first place. The court must stay a proceeding if a party alleges that the claim is with respect to a minor injury until the CRT decides whether the injury is, in fact, a “minor” one (CRTA, s. 16.1(2)(a)). The court may take jurisdiction on the question of liability and damages but the onus is on the party seeking to oust the tribunal’s jurisdiction to establish that there is a substantial likelihood that damages will exceed the $50,000 cap or that it is in the “interests of justice and fairness” to do so (CRTA, s. 16.1(2)(b)).

[203]     There is no issue that the development of the law in relation to personal injury generally lies with the superior courts, particularly in the law of negligence. Experience tells that most of the personal injury cases in the courts arise from automobile accidents.

[204]     As noted in the Article 35 Reference at para. 85:

The paramount role given to the superior courts derives in part from the fact that they are courts of original general jurisdiction. A court of original general jurisdiction is the antithesis of a specialized tribunal. A specialized tribunal draws legal conclusions based on a limited number of principles and rules falling within its area of expertise, whereas a court of original general jurisdiction considers and interprets many principles and general rules that may apply in a number of fields of law. In giving the superior courts this breadth of perspective, the framers of the Constitution intended them to ensure the maintenance and coherent development of an actual order of positive laws, as well as to ensure stability and predictability in private law relationships (Reference re Manitoba Language Rights, at pp. 747‑52; Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at para. 70; T. Bingham, The Rule of Law (2010), at pp. 38‑39; Huppé, at p. 13). If the legislatures were free to diminish, by means of unlimited transfers of jurisdiction, the superior courts’ ability to lay down the broad lines of the case law, it would no longer be possible for these courts to perform their constitutional role as the primary guardians of the rule of law.

[205]     The responsibility of the superior courts to develop the law stems from the key principles of maintaining national unity and upholding the rule of law (Article 35 Reference at paras. 41–52).

[206]     And at para. 86 of the Article 35 Reference:

This is why a general jurisdiction over private law matters must be accompanied by a subject‑matter jurisdiction that is broad enough to preserve the superior courts’ role in providing jurisprudential guidance on private law (N. Lyon, “Is Amendment of Section 96 Really Necessary?” (1987), 36 U.N.B.L.J. 79, at pp. 83‑84). In our view, this requires significant — though not necessarily predominant — involvement in the resolution of disputes falling under the most fundamental branches of private law, such as property law, the law of succession and the law of obligations. A province may assign portions or offshoots of these fields to courts whose judges it appoints, within the restrictions of Residential Tenancies. But if, in so doing, it limits the superior court’s involvement significantly, then it “alters [that court’s] essence, making it something less than a superior court” (MacMillan Bloedel, at para. 1). In short, a province which takes away an aspect of the court’s core jurisdiction contravenes s. 96 — a provision whose purpose lies in the “maintenance of the rule of law through the protection of the judicial role” (Reference re Remuneration of Judges (1997), at para. 88 (emphasis added); Trial Lawyers, at para. 39). In every case, the line that must not be crossed will be dependent upon a contextual and multi‑factored analysis.

[Emphasis in original.]

[207]     The question posed in the Article 35 Reference at para. 87 is:

Does the grant of jurisdiction impact the superior court of general jurisdiction in such a way as to alter its essential nature or prevent it from playing its role under s. 96? If the jurisdiction-granting provisions transforms the provincial court [here, the CRT] into a parallel court prohibited by the Constitution, the answer to this question must be yes.

[208]     Before applying the factors set out in the Article 35 Reference, I acknowledge that the jurisdiction transferred in this case is less extensive than that transferred by the Quebec legislature in art. 35 of the Code of Civil Procedure. In that case there was a broader grant of jurisdiction, and for a higher monetary amount. The transfer was to another court, whereas here, the transfer is to a tribunal. However, the appellants acknowledge that the tribunal, once it is at the hearing stage, does perform its functions in a way analogous to a court.

[209]     Here, the amendments grant the CRT exclusive jurisdiction in “minor” personal injury automobile cases with a value less that $50,000. Prior to the amendments, that jurisdiction resided concurrently with the provincial court up to $35,000 and exclusively with the superior court after $35,000.

[210]     The decision in the Article 35 Reference made it clear that the six factors utilized in that analysis were not exclusive. Chief Justice Bauman focussed on the six factors. In my view, there is an additional factor that has relevance to this case, and that is the issue of judicial independence. Chief Justice Bauman is of the view that that issue needs to be litigated in a different context. With respect, I disagree.

A. Scope of the Jurisdiction

[211]     The first factor is the scope of the jurisdiction being granted. The scope is examined not just on a quantitative basis, but also on a qualitative basis, as set out in the Article 35 Reference at para. 97:

The scope of the jurisdiction being granted is not a strictly quantitative factor linked to the number of disputes concerned. On the contrary, this factor requires that the jurisdiction in question be situated in relation to the main branches of private law. In determining whether the transfer is “vast” or “limited”, we must bear in mind the role of the superior courts of general jurisdiction, which, more than any other court, are responsible for ensuring the coherence of private law. If a provincial court is granted a large block of jurisdiction at the heart of private law — such as contract law or property law — that would suggest that that court is, in exercising the jurisdiction in question, acting as a prohibited parallel court and that the superior courts are impaired as a result. Whether such a grant is constitutional will then depend on the scope of the limits placed on it. In contrast, a grant of a limited jurisdiction — over matters with respect to lease, for example — will not weigh as heavily in favour of such a conclusion, since it is only a very specific branch and not the very centre of contract law.

[212]     Chief Justice Bauman focuses on the “minor injury” aspect of the legislation, and concludes that because the transfer is a discrete aspect of personal injury, and the amount is capped at $50,000, the legislation leaves a sufficient number of cases in the superior court to develop the law.

[213]     As noted above, in my view, when one closely examines the definition of “minor injury”, one finds that it is an expansive one that covers, amongst other things, chronic pain, chronic psychological and psychiatric conditions, and concussion injuries short of incapacity.

[214]     In 2019, around 24,546 new actions relating to motor vehicle collisions were filed in the Supreme Court of British Columbia representing 30% of all new civil and family cases filed that year (Summary Reasons at para. 323). Between 2015 and 2019, only 0.2% to 0.6% of the total claims that were ultimately resolved—either by settlement or judgment—actually went to trial (at para. 325). Over a five-year period, over 80% of accident claims were settled for $50,000 or less; of those claims for under $50,000, 15% were litigated; and less than 1% of those litigated claims were actually adjudicated in a trial (at para. 326).

[215]     While the proportion of cases that were actually resolved by trial is very small, the sheer number of cases commenced each year means that the CRT will take jurisdiction over a large number of cases that are currently decided, tried, and case‑managed by the superior court.

[216]     I view the transfer of a significant part of the personal injury arising from automobile accidents—recall that 80% of cases settle for an amount within the tribunal’s jurisdiction—to the CRT as a serious transfer of the jurisdiction of the superior court. It deprives the court of a large number of opportunities to ascertain what amounts to negligence, resulting in liability, in a time when the law is in a period of change. New issues will be emerging and they will require the courts to establish legal parameters with respect to liability. For example, social host liability is still not entirely settled. In addition, the emergence of self-driving automobiles will present novel issues: who will be liable, the non-driver or the car manufacturer, perhaps the car dealership, and so on? These are matters on which the superior courts—not the CRT—need to opine. Such cases may well result in “minor” personal injury, but they still give rise to complicated and novel legal questions. While the court may take jurisdiction from the CRT because of the importance of the issue and the need for a precedent, this is a discretionary decision with the onus placed on the applicant and part of a cumbersome pre-trial process, as discussed further below.

[217]     Thus, in my view, the broad scope of the jurisdiction transferred to the CRT weighs in favour of a finding that the CRT is an impermissible parallel court.

B. Whether the Grant is Exclusive or Concurrent

[218]     The second factor is whether the grant of jurisdiction is exercised exclusively or concurrently with the superior courts. As noted above, the jurisdiction to hear personal injury automobile cases with a dollar limit less than what has now been granted to the CRT was, prior to the amendment, shared between the provincial and superior courts. The CRT has now been given exclusive jurisdiction to hear cases under $50,000. It determines its own jurisdiction, and the superior court is obliged to stay or dismiss proceedings brought before it. The granting of exclusive jurisdiction undermines the superior courts as the “cornerstone of a unitary system of justice” (Article 35 Reference at para. 101). A concurrent grant preserves this capacity, which is one reason why the grant of limited concurrent jurisdiction to the provincial courts did not undermine the role of s. 96 courts.

[219]     In the Article 35 Reference, the majority examined the circumstances in other provinces with respect to the grant of jurisdiction to the provincial courts. To my knowledge, there is no other tribunal with a similar grant of exclusive jurisdiction over specified personal injury claims in any other province in Canada. Thus, the scope of the BC court’s jurisdiction varies significantly from those in other provinces in relation to personal injury automobile cases.

[220]     The transfer of exclusive jurisdiction to the CRT has resulted in the superior courts becoming inaccessible to individuals who have suffered personal injury in an automobile accident with a loss under $50,000. In my view, this is a significant “maiming” of the jurisdiction of the superior courts (Article 35 Reference at para. 63).

[221]     In Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59 [Trial Lawyers 2014], the Court concluded that significant court fees could interfere with a litigant’s access to the courts, and that interference infringed the core jurisdiction of the superior courts. The Court held at para. 32:

The historic task of the superior courts is to resolve disputes between individuals and decide questions of private and public law. Measures that prevent people from coming to the courts to have those issues resolved are at odds with this basic judicial function. The resolution of these disputes and resulting determination of issues of private and public law, viewed in the institutional context of the Canadian justice system, are central to what the superior courts do. Indeed, it is their very book of business. To prevent this business being done strikes at the core of the jurisdiction of the superior courts protected by s. 96 of the Constitution Act, 1867. As a result, hearing fees that deny people access to the courts infringe the core jurisdiction of the superior courts.

[222]     The Court went on to say that the province does not have the authority to enact legislation that prevents people to accessing the courts, which is what has occurred with the transfer of jurisdiction here:

[37]          This is consistent with the approach adopted by Major J. in Imperial Tobacco. The legislation here at issue ― the imposition of hearing fees ― must conform not only to the express terms of the Constitution, but to the “requirements … that flow by necessary implication from those terms” (para. 66). The right of Canadians to access the superior courts flows by necessary implication from the express terms of s. 96 of the Constitution Act, 1867 as we have seen. It follows that the province does not have the power under s. 92(14) to enact legislation that prevents people from accessing the courts.

[38]          While this suffices to resolve the fundamental issue of principle in this appeal, the connection between s. 96 and access to justice is further supported by considerations relating to the rule of law. This Court affirmed that access to the courts is essential to the rule of law in B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214. As Dickson C.J. put it, “[t]here cannot be a rule of law without access, otherwise the rule of law is replaced by a rule of men and women who decide who shall and who shall not have access to justice” (p. 230). The Court adopted, at p. 230, the B.C. Court of Appeal’s statement of the law ((1985), 20 D.L.R. (4th) 399, at p. 406):

… access to the courts is under the rule of law one of the foundational pillars protecting the rights and freedoms of our citizens… . Any action that interferes with such access by any person or groups of persons will rally the court’s powers to ensure the citizen of his or her day in court. Here, the action causing interference happens to be picketing. As we have already indicated, interference from whatever source falls into the same category. [Emphasis added by McLachlin CJC.]

As stated more recently in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, per Karakatsanis J., “without an accessible public forum for the adjudication of disputes, the rule of law is threatened and the development of the common law undermined” (para. 26).

[39]          The s. 96 judicial function and the rule of law are inextricably intertwined. As Lamer C.J. stated in MacMillan Bloedel, “[i]n the constitutional arrangements passed on to us by the British and recognized by the preamble to the Constitution Act, 1867, the provincial superior courts are the foundation of the rule of law itself” (para. 37). The very rationale for the provision is said to be “the maintenance of the rule of law through the protection of the judicial role”: Provincial Judges Reference, at para. 88. As access to justice is fundamental to the rule of law, and the rule of law is fostered by the continued existence of the s. 96 courts, it is only natural that s. 96 provide some degree of constitutional protection for access to justice.

[223]     The transfer of jurisdiction does not completely block access to the superior courts, as will be discussed below in relation to the appeal process. The legislature also has made room for an “interests of justice” exception—the “safety valve” discussed by Chief Justice Bauman. However, the onus of establishing that the exception applies lies primarily with the claimant, not ICBC. In addition, as noted below, the “interests of justice” exception has little meaning after the judicial review process.

[224]     For all intents and purposes, the jurisdiction for claims under $50,000 is a grant of exclusivity.

C. Monetary Limit

[225]     The similarity of a monetary limit to pre-Confederation limits is a factor, but it cannot be a determinative factor (Article 35 Reference at para. 106).

[226]     A flexible approach to the monetary limit facilitates access to justice, especially outside of large urban centres where courts can be readily accessed (Article 35 Reference at para. 112). The CRT is primarily an online tribunal, and it is easily accessible by the public. (Although since the pandemic, the courts have also changed their manner of doing business, with remote hearings using Zoom or similar technology, more telephone hearings, and so on.)

[227]     In the Article 35 Reference, the majority determined that today’s equivalent of the pre-Confederation monetary limits would establish a range between $63,698 and $66,008. The respondents submit that that calculation is based on a ceiling of $100, when the ceiling for personal injury claims was more likely to be $40, which would be less than half that amount, and well under the $50,000 grant of jurisdiction to the CRT.

[228]     In my view, the dispute here is not centred on the monetary amount. If such jurisdiction was granted to the provincial courts as concurrent jurisdiction, there could be no complaint that that grant of jurisdiction offended s. 96.

D. Appeal Jurisdiction

[229]     The Article 35 Reference states that “[a]ppeal mechanisms can shed helpful light on the question whether a grant of jurisdiction establishes a prohibited parallel court that undermines the role of the superior courts of general jurisdiction” (at para. 119).

[230]     In the Article 35 Reference, the majority examined the role of the appellate function in terms of defining whether the provincially appointed court was a parallel court. It said, at para. 121:

… If decisions of the court with provincially appointed judges can be appealed to a superior court of general jurisdiction at little cost, without leave and with no requirement of deference on questions of law, then there is a very clear hierarchical distinction between the two courts, and the superior court of general jurisdiction retains its ability to state the law. It will then be more difficult to conclude that the grant of jurisdiction undermines the superior court’s role and impermissibly invades its general private law jurisdiction. If, on the other hand, there is a right to appeal directly to the provincial court of appeal, then there is no hierarchical distinction between the two courts and the superior court of general jurisdiction has no sway over decisions of the court with provincially appointed judges. In short, that would suggest that the court with provincially appointed judges functions as a parallel court.

[231]     The CRT does not operate as a “court”. The CRTA sets out the following provisions with respect to how hearings are conducted:

General tribunal authority in conducting hearings

38        The procedure for a tribunal hearing in relation to a dispute is at the discretion of the tribunal, subject to this Act and the rules.

How tribunal hearings are conducted

39        (1) In resolving a dispute, the tribunal may conduct a hearing in writing, by telephone, videoconferencing or email, or through use of other electronic communication tools, or by any combination of those means.

(2) It is not necessary for the means of communication referred to in subsection (1) to allow all parties to the dispute to take part at the same time.

(3) The tribunal may hold an in-person hearing if the tribunal considers that the nature of the dispute or that extraordinary circumstances make an in-person hearing necessary in the interests of justice.

(4) Subject to an order under subsection (5), an in-person hearing must be open to the public.

(5) The tribunal may, by order,

(a)        impose restrictions on a person's continued participation in or attendance at a tribunal hearing, and

(b)        exclude a person from further participation in or attendance at a tribunal hearing until the tribunal orders otherwise.

Notice of hearing

40   The tribunal must give notice to the parties as to the following:

(a) when the tribunal hearing is to be started;

(b) the means by which it is to be conducted;

(c) if applicable, where the hearing is to be conducted;

(d) if applicable, the times by which steps in the hearing are to be completed and by whom;

(e) any other information required to be provided under the rules.

Consent resolution orders if parties resolve issues or claims by agreement

41        (1) If, in the tribunal hearing phase, the parties to a dispute reach a resolution by agreement on any or all of the issues or claims in the dispute, they may ask the tribunal to approve a consent resolution order respecting the issues or claims.

(2) If the tribunal approves the consent resolution order, that order is a final decision of the tribunal resolving the specified issues or claims.

Evidence in tribunal hearing

42   (1) In conducting a hearing, the tribunal may do any or all of the following:

(a)        receive, and accept as evidence, information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law;

(b)        ask questions of the parties and witnesses;

(c)        inform itself in any other way it considers appropriate.

(2) The tribunal is not bound by the rules of evidence, but may not admit evidence that is inadmissible in a court because of a privilege under the law of evidence or otherwise.

(3) Unless otherwise required under the rules or by the tribunal, evidence to be provided in a tribunal hearing may be provided in electronic form.

(4) Nothing in this section overrides the provisions of this or any other Act that expressly limit the extent to which or purposes for which any oral testimony, information, records or things may be admitted or used in evidence.

[Emphasis added.]

[232]     In other words, the CRT has flexible rules of evidence and it does not necessarily hear the case synchronously, such that the tribunal member may hear from the parties separately. While the legislature is entitled to establish different rules of procedure and evidence for the tribunal, the difficulty is that the factual foundation laid may not be entirely admissible for appellate review when the court is determining the law.

[233]     Chief Justice Bauman has helpfully set out the judicial review provisions in a chart at para. 178.

[234]     It is useful to show an example of how the legislation could work. Under the judicial review in the legislation at issue (as noted by Bauman C.J.B.C., there have been minor amendments), the process for a litigant living with chronic pain (presumptively, a minor injury) is as follows: The claimant would file in Supreme Court; the Supreme Court would be obliged to stay the claim pending the review by the CRT as to the jurisdiction; the CRT would assess whether there was a substantial likelihood that the Supreme Court would assess damages higher than $50,000, (so the Supreme Court is not deciding what it would likely decide); and the Supreme Court then reviews that decision on what it would likely decide on the basis of patent unreasonableness, (or “clearly irrational”). Assuming the finding is not clearly irrational, the Supreme Court would then be called upon to determine whether it was in the (unstructured discretion of) interests of justice to proceed in the Supreme Court, which has now essentially been rendered meaningless as a result of the judicial review process. I do not see this as a “robust” appellate review process.

E. Impact of the Caseload of the Superior Court of General Jurisdiction

[235]     In the Article 35 Reference, the majority approached the factor of the impact on the superior court’s caseload at para. 124:

A grant of jurisdiction to a court with provincially appointed judges does not necessarily deprive the superior court of all forms of involvement in that area of jurisdiction. If, for example, the grant in question is subject to a monetary ceiling, the superior court of general jurisdiction continues to have jurisdiction over claims that exceed the amount of that ceiling. But there may be circumstances in which the impact of the grant on the caseload retained by the superior court of general jurisdiction in the specific area of jurisdiction makes it possible to draw conclusions as to whether that court’s role has been undermined and whether a parallel court has been created.

[236]     As noted above in the discussion of the scope of the jurisdiction, the sheer number of motor vehicle collision cases in the Supreme Court means that even if only a small percentage of these cases are transferred to the CRT, this has a significant impact on the caseload of the superior court.

F. Pursuit of an Important Societal Objective

[237]     The role of the important societal objective was discussed in the Article 35 Reference as follows:

[126]       Granting jurisdiction to a court with provincially appointed judges may be the means a legislature adopts to try to address a societal concern. The pursuit of an important societal objective may lend credence to the idea of a legitimate exercise of the provincial power in relation to the administration of justice, that is, of an exercise of that power for a purpose other than the creation of a prohibited parallel court. Access to justice, for example, is an important societal objective that could justify granting certain areas of jurisdiction to courts with provincially appointed judges (Re: B.C. Family Relations Act, at p. 107). The provinces must have considerable flexibility in what they do to address the needs of a changing society. The only limit on their initiative is that they may not create parallel courts that undermine the role of the superior courts of general jurisdiction. That being said, it is not enough to allege that there is an important societal objective; it is also necessary to show that the objective is real and that there is a connection between the grant of jurisdiction to a court with provincially appointed judges and the achievement of the objective. Given that the provinces are responsible for the administration of justice, for the adoption of rules of practice and for the financing of court operations, they cannot avail themselves of an access to justice argument on the basis of their own failure to give the superior courts sufficient resources.

[127]       Access to justice can also be promoted through features like a simplified procedure and simplified rules on the production of evidence. A summary procedure, for example, or rules of evidence that are relaxed in comparison with those that apply in the superior courts, will make the court with provincially appointed judges distinctive. It will then be more difficult to conclude that the grant of jurisdiction establishes a prohibited parallel court that prevents the superior court of general jurisdiction from playing its role. Other features such as the types of remedies that may be ordered (Tomko, at pp. 123‑25) or the absence of representation by lawyers can also be taken into consideration.

[Emphasis added.]

[238]     Chief Justice Bauman is of the view that it is not the court’s duty to consider whether the transfer of jurisdiction is actually working (para. 150). In my respectful view, that is precisely what the Court is saying in the Article 35 Reference when it requires proof not only of the societal objective, but also that the objective is real, and that there is a connection between the grant of jurisdiction and the achievement of the objective. This point is also made clear in Trial Lawyers 2014 at paras. 60–63.

[239]     Access to justice includes access to the courts in a manner affordable to the general public (Trial Lawyers 2014 at paras. 38–42). It can also encompass access to awards for injury at a lower cost and in a more efficient manner.

[240]     In British Columbia, contingency fees with respect to personal injury claims have long been in existence. Fees are generally a percentage of the final award, and nothing is payable in advance, including expert reports. This is one area where an injured person had easy access to the courts, and concomitantly, easy access to justice.

[241]     On the other hand, it is no secret that proceeding through the courts can be a long and arduous process. The superior courts, in the development of their rules, have taken steps over the years to try and reduce the cost of litigation and speed up access to justice in the forms of summary trials, fast-track litigation, and limited expert reports (see Supreme Court Civil Rules 9-7 and 15-1; Evidence Act, R.S.B.C. 1996, c. 125, s. 12.1). As noted in para. 127 of the Article 35 Reference, the provincial courts also have simplified rules of procedure.

[242]     The EY Report makes it clear that the societal objective of the transfer of jurisdiction is keeping Basic insurance rates low. In my view, while this is an important societal objective, it has little to do with access to justice. It is a political objective. The government, according to the EY Report had to either raise insurances rates significantly, (not something the government wished to do, as is clear with ICBC’s history), or create an alternative method of lowering ICBC costs. It chose to create a tribunal comprised of civil servants whose task is to resolve claims while lowering the cost to ICBC.

[243]     As the Court held in the Article 35 Reference at para. 126:

Given that the provinces are responsible for the administration of justice, for the adoption of rules of practice and for the financing of court operations, they cannot avail themselves of an access to justice argument on the basis of their own failure to give the superior courts sufficient resources.

[244]     In my view, the purported objective of “access to justice” is erroneous. That may well be an objective, but in my view, the main objective of alleviating the significant debt of ICBC without raising premiums (a politically unpopular step) is not a societal objective that justifies the transfer of power from the superior courts to the CRT.

[245]     The CRT operates very differently than the superior court in terms of procedures. However, no evidence was adduced in relation to the cost of operating the CRT and how its procedures are an improvement on the superior courts in terms of access to justice.

G. Lack of Independence of the Tribunal

[246]     The CRT, for all of its human-centred design and user-friendly approach, is not a court and its decision makers are not judges. They are civil servants with none of the protections of their actual and perceived independence that are provided, in the public interest, to judges. This is particularly important in cases in which the provincial government is a party. The public ought to have assurances that decision makers are independent and reasonably perceive them to be independent, something that is simply not possible under the current structure of the CRT. The legislation at issue engages ICBC either as a named party, or defending the insurance claim. ICBC is a Crown corporation, which, according to the EY Report, is in dire financial trouble. One wonders how a tribunal established by the province can be seen to fairly adjudicate injury claims when its grant of legislation is made on the basis that ICBC needs to save money.

[247]     Chief Justice Bauman is of the view that independence is not a matter for consideration in this litigation. I beg to differ. In my view, it is an important factor in the context of the transfer of the jurisdiction in question.

H. Weighing the Factors

[248]     In the Article 35 Reference, the majority set out the weighing process:

[132]       To determine how much latitude a legislature has should it wish to exceed these historical ceilings, we must consider the various factors of the multi‑factored analysis: the scope of the jurisdiction being granted, whether the grant is exclusive or concurrent, the relationship between the proposed monetary limit and the historical monetary ceilings, appeal mechanisms, the impact of the jurisdiction‑granting provision on the superior court’s caseload, and whether there is an important societal objective. All these factors are weighed in order to strike an appropriate balance between recognition of the provinces’ jurisdiction over the administration of justice and preservation of the nature, the constitutional role and the core jurisdiction of the superior courts of general jurisdiction.

[133]       The more the analysis of the above factors suggests that the core jurisdiction of those courts has been infringed on, the less the province will be allowed to depart from the updated historical monetary ceilings. Conversely, the less the analysis of the factors in question suggests that the core jurisdiction of the superior courts has been infringed on, the more the province will be free to depart from those ceilings. This is essentially a continuum. At one end of the spectrum, the grant of a vast jurisdiction that is exclusive, is not accompanied by a mechanism for appealing a decision to a superior court of general jurisdiction, has a significant impact on that court’s caseload and is not justified having regard to an important societal objective will limit the legislature’s freedom and is not constitutional. The impact of such a grant on the superior court of general jurisdiction could be so great that merely complying with the historical monetary ceilings would not suffice under s. 96. At the other end of the spectrum, the concurrent grant of a more limited jurisdiction — one that is accompanied by a mechanism for appealing a decision to a superior court of general jurisdiction, has little impact on that court’s workload and is justified having regard to an important societal objective — will give the legislature considerable flexibility. In every case, however, there must be a reasonable connection between the monetary ceiling contemplated by the legislature and the updated historical ceilings. The two ceilings must be in a similar range so as to be consistent with the general division of labour at the time of Confederation. In the same way, an exclusive grant cannot “maim” the superior courts by impermissibly infringing on their core jurisdiction.

[Underlining emphasis added; italic emphasis in original.]

[249]     The transfer of jurisdiction here is not as vast as that in the Article 35 Reference. It is, however, an exclusive jurisdiction of an important aspect of the law, which will require significant legal analysis in the not-so-distant future, particularly in terms of liability issues. The development of the law may well be stymied by that transfer. The appeal process is by way of a cumbersome judicial review process, although the monetary sum is within that which was established at Confederation. Despite the “discrete” nature of the transfer, the so-called “minor injuries”, there is still a significant number of cases that will be removed from the jurisdiction of the superior courts. There is not, in my view, a sufficiently important societal objective that justifies the transfer of jurisdiction from the superior courts. The lack of independence of the CRT is of importance in this transfer of jurisdiction given the fact that ICBC is a Crown agent.

[250]     In my view, the impugned sections infringe s. 96 when all of the factors are weighed and considered together. The CRT has been established as a parallel court assigned to deal with personal injury from motor vehicle claims. As a result, the unity and uniformity of the Canadian judicial system is undermined, and the core jurisdiction of the superior court has been impermissibly infringed.

[251]     I would dismiss the appeal, and uphold the order of Hinkson C.J.S.C.

III. Cross Appeal

[252]     I agree with the disposition of the cross appeal as outlined by Bauman C.J.B.C.

“The Honourable Madam Justice Bennett”



[1] See Civil Resolution Tribunal Amendment Act, 2018, S.B.C. 2018, c. 17 (introducing amendments to the Civil Resolution Tribunal Act, S.B.C. 2012, c. 25, the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231, and other related acts) [CRTAA]. See also B.C. Reg. 232/2018 (bringing into force aspects of the CRTAA not specific to accident claims on 1 January 2019); B.C. Reg. 233/2018 (bringing into force accident-claim specific aspects of the CRTAA on 1 April 2019); B.C. Reg. 234/2018 (amending the Insurance (Vehicle) Regulation, B.C. Reg. 447/83 and making the Minor Injury Regulation, B.C. Reg. 234/2018, effective 1 April 2019).

[2] These provisions were introduced through the Attorney General Statutes (Vehicle Insurance) Amendment Act, 2020, S.B.C. 2020, c. 10 and were brought into force on 1 May 2021 by B.C. Reg. 4/2021.