This self-represented injury claimant brought a lawsuit against the Attorney General aiming to have the ICBC no-fault legislation overturned (Lee v. British Columbia (Attorney General), 2024 BCSC 865). He complained that he cannot sue the driver for negligence under the amended Insurance (Vehicle) Act (IVA), which permits lawsuits only if criminal conduct is involved. The claimant argues this amendment is unconstitutional as it discriminates between victims based on the nature of the driver’s conduct.

In the underlying car accident, the claimant was struck by a car while walking legally in a pedestrian lane in Richmond, B.C., on October 15, 2021. He sustained a severe knee injury that resulted in chronic pain, mobility issues, and depression.

Constitutional Challenge

The claimant argued that the amended IVA violates Section 15 of the Canadian Charter of Rights and Freedoms by creating unequal treatment between victims of accidents involving criminal conduct and those involving negligent conduct. He claims the IVA’s distinction between criminal and non-criminal conduct is unjust and discriminatory.

The Attorney General of British Columbia moved to strike Lee’s notice of civil claim, arguing it fails to state a reasonable cause of action. The Attorney General contends the IVA’s distinction does not violate Section 15 of the Charter.

Judicial Analysis and Decision

Mr. Justice Gomery found that a pleading should be struck only if it is plain and obvious that the claim has no reasonable prospect of success . However, pleadings should be read generously and minor defects overlooked if they do not prejudice the defendant.

Section 15(1) of the Charter ensures every individual is equal before the law without discrimination based on enumerated grounds such as race, national origin, color, religion, sex, age, or mental/physical disability. A distinction however must be based on an immutable quality or a historically disadvantaged group to be considered discriminatory.

The Court determined that the distinction in the IVA is not based on an immutable characteristic or a historically disadvantaged group. Being a victim of a negligent driver does not fit within the analogous grounds framework. Justice Gomery found the claim constitutionally unsound as the distinction in the IVA does not violate Section 15. The claim was dismissed without leave to amend due to its fundamental legal flaw.

Concept of Analogous Grounds of Discrimination

Analogous grounds are characteristics or qualities not explicitly listed in Section 15 of the Charter but deemed equivalent based on their immutability and historical disadvantage. These grounds serve as markers of suspect decision-making or potential discrimination.

Courts assess whether a distinction targets a group based on an immutable characteristic or has suffered historical discrimination.

The distinction based on the driver’s conduct (criminal vs. negligent) does not meet the criteria for analogous grounds. The characteristic (being a victim of a negligent driver) is neither immutable nor historically discriminated against, thus failing to qualify as an analogous ground under Section 15.

By applying these principles, the court affirmed that this claim lacked the necessary foundation to proceed under Section 15 of the Charter.

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