The Attorney General David Eby’s scheme to have ICBC injury claims decided by an appointed tribunal is unconstitutional, says Judge Hinkson. Specifically, the Civil Resolution Tribunal (CRT) does not have the power to (1) label ICBC claimants as having “minor injury”, nor do they have the power to (2) decide on liability and damages for car accident claims. The legislation that was struck down shifted power to the CRT to decide personal injury cases valued at $50,000 or less. This was found to be invalid and of no force of effect insofar as the law applied to MVA claims, other than ICBC accident benefits. (TLABC v. BC(Attorney General), 2021 BCSC 348).
The decision to limit legal rights and ICBC compensation to victims of personal injury was justified by Mr. Eby on the basis of affordable ICBC car insurance. Our Attorney General, Mr. Eby and ICBC will continue, no doubt, on this path. However, for now, the attempt to transfer adjudicative power over tort claims from the Supreme Court to the administrative tribunal, CTR, has been struck down.
The CRT’s jurisdiction to determine accident benefits was maintained by the Court and severed from the power to determine liability and damages for motor vehicle claims under $50,000 under subsection and to determine whether an injury is a minor injury for the purposes of the Insurance (Vehicle) Act.
WHAT THIS DECISION MEANS FOR ICBC INJURY CLAIMANTS
ICBC injury claimants with car accidents on or after April 1, 2019 can still file a NOCC (Notice of Civil Claim), other than claims for ICBC accident benefits, with the Supreme Court of British Columbia.
However, claims for ICBC accident benefits for accidents occurring on or after April 1, 2019 must be commence with the CRT by way of a Dispute Application Form (DAF ). Due to the decision of March 2, 2021 the CRT will need to change the DAF to remove reference to their jurisdiction to determine minor injury, liability and damages for auto accidents.
The Court therefore declared that that sections 133(1) (b) and (c) of the Civil Resolution Tribunal Act are unconstitutional and of no force or effect. Judge Hinkson also declared that section 16.1 of the CRTA is unconstitutional and should be read down insofar as it applies to accident claims, except for determination of accident benefits under s. 133(1)(a). He declined to grant any order with respect to the Accident Regulations.
ICBC MINOR INJURY DETERMINATION FOR ACCIDENT AFTER APRIL 1, 2021
The CRT does not have the power to label an injury claimant as minor injury, according to Judge Hinkson. It will therefore be the responsibility of Supreme Court judges to make these decisions, if the minor injury laws are not eliminated or found to be illegal in the future.
The classification of a injury as “minor injury” for ICBC claims results in a cap of less than $6,000 being applied to the claim for pain and suffering. The decision of March 2, 2021 confirms that the power to make this determination remains with the Supreme Court.
The Supreme Court of British Columbia will therefore continue to hear claims that arise from motor vehicle accidents. It appears that ICBC injury cases will not be impaired by the legislation being struck down. Unfortunately this is not the end to ICBC Minor Injury, but rather a transfer of the decision making process to a more independent body, the Supreme Court.
ICBC ACCIDENT INJURY BENEFITS
the CRT still retains the exclusive power to determine entitlement to ICBC injury benefits for accidents occurring on or after April 1, 2019. Therefore, the Civil Resolution Tribunal is where all actions for Part 7 benefits must be commenced for accidents occurring on or after April 1, 2019.
Determination of whether an ICBC injury benefit is reasonable, however, is under the Arbitration Act. In cases in which a claimant is receiving benefits from ICBC but disputes the level of compensation, the CRT will have no power to make decision on the level of care provided.
David Eby’s Fight Against Personal Injury Lawyers
Injury Lawyers have been singled out by Mr. Eby, because our protection of injury rights costs his government monopoly ICBC money. Our Attorney General, as legal advisor to the government, appears to be failing at his job. The Supreme Court continues to strike down his legislation as unconstitutional. Not only is this a waste of taxpayer money, but it also displays a pattern of abuse and disregard for the rights and financial futures of injury victims. From all accounts from Mr. Eby, he appears to be motivated by his desire to provide low cost affordable car insurance. From his NDP government actions it appears purely motivated by the desire to increase the money and profits of our state run auto monopoly, ICBC. For Mr. Eby, the worth and quality of injury victims life is to be given no financial value in exchange for what he calls, “enhanced care”. Serious injury are also to be called minor, to protect ICBC from the cost a guilty driver would otherwise be required to pay. This case shows that Mr. Eby was prepared to endorse an illegal tribunal to increase the money staying with ICBC.
As the TLABC president Kevin Gourlay aptly pointed out, “If ICBC wrongly tells you that you were at fault for an accident or wrongly tells you that your injuries are minor, you should have access to an independent court,”… “This unconstitutional law created an online government tribunal into which ICBC intended to force certain accident claims.”