Key Provisions of CRT Act found Unconstitutional

The Civil Resolutions Tribunal (or CRT) is an administrative tribunal established by the BC government in 2012 to handle disputes between strata councils and property owners. In 2017 the tribunal’s jurisdiction was expanded to allow them to hear small claims disputes of $5,000 or less.

The NDP government drastically expanded the tribunal’s jurisdiction in 2019 to decide several matters related to ICBC and motor vehicle accidents. Specifically, they gave the CRT exclusive jurisdiction to decide:

  1. whether a person injured in a car accident is entitled to ICBC no-fault or Part 7 benefits;
  2. whether a person’s injuries are “minor” as defined by the BC government; and
  3. claims of $50,000 or less.

By providing the CRT with exclusive jurisdiction, they stripped the jurisdiction of the courts to hear these type of matters. It’s important to remember that the CRT is not a court. It is an administrative tribunal. Unlike court hearings that are presided over by judges, CRT hearings are presided over by “members” who are not required to have legal education, experience, or training.

The constitutionality of the CRTs jurisdiction to hear these claims was hotly debated when they were announced and a constitutional challenge was launched by the Trial Lawyers Association of BC.

In reasons for judgment indexed as Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2021 BCSC 348, the Chief Justice of the BC Supreme Court determined that elements of the legislative scheme was unconstitutional and offends section 96 of the Constitution Act, 1867. Section 96 protects the independence of the judiciary and guarantees the core jurisdiction of the provincial superior courts in Canada. In particular, the Chief Justice found that the exclusive jurisdiction granted to the CRT to decide whether a person’s injuries are “minor” and to hear claims up to $50,000 was unconstitutional. He also determined that granting the CRT jurisdiction to decide whether a person injured in a car accident is entitled to ICBC no-fault was appropriate jurisdiction to grant to the CRT.

Key to the Chief Justice’s decision was his determination that the granting of exclusive jurisdiction to the CRT was not incidental to enhancing access to justice, but was part of a scheme to transfer the adjudicative power over these type of claims from the Supreme Court to an administrative tribunal.

Having determined that aspects of the legislation granting exclusive jurisdiction to the CRT was unconstitutional, the Chief Justice declared those provisions of no force or effect and set out that these matters could now proceed in Provincial or Supreme Court. Practically, speaking, that means that a person who has been injured in a car accident after April 1, 2019 and who ICBC says is caught by the minor injury cap on damages is entitled to have that determined by the court, not the CRT.

The Attorney General has announced that the government intends to appeal this decision. If the appeal is ultimately heard by the Court of Appeal, we will report on that decision.

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