Tribunal is currently in a state of constitutional flux, says plaintiff-side personal injury lawyer
While the B.C. Civil Resolution Tribunal progressively embraces technology and offers speedier and cheaper means to adjudicate civil disputes, it cannot neglect individual due process rights and the proper application of legal principles, a lawyer has said in the wake of a BCCRT appeal.
Erik Magraken, the managing partner at MacIsaac & Company, noted that the Civil Resolution Tribunal is currently in a state of constitutional flux. While the legislature granted the tribunal exclusive jurisdiction to adjudicate certain motor vehicle collision and insurance disputes in the province, the court struck down the legislation as unconstitutional.
“The government announced an intention to appeal, and there is much uncertainty as to the scope of the tribunal’s jurisdiction that will survive once the constitutional litigation runs its course,” Magraken says.
Magraken, who restricts his practice exclusively to plaintiff-only personal injury claims, summarized Devendra v British Columbia Civil Resolution Tribunal, 2021 BCSC 407 in a blog post. In that case, the petitioner and the private respondent, both insured with the Insurance Corporation of British Columbia, were in a motor vehicle accident in 2017. The petitioner and the private respondent reported facts that contradicted each other. The ICBC declared that the petitioner was 100 per cent at fault.
In 2019, the petitioner filed a dispute with the Civil Resolution Tribunal, seeking a reversal of the ICBC’s finding of fault and monetary claims totalling $3,000, among other reliefs. The petitioner contended that the ICBC manipulated and destroyed evidence and failed to investigate his appeal properly.
The private respondent initiated a civil claim with the Supreme Court of British Columbia, claiming damages for alleged injuries from the 2017 accident. The ICBC advised the petitioner that its counsel would defend him in the civil action, but the outcome of the civil action would not change its decision respecting his liability for the accident.
In April 2020, the Civil Resolution Tribunal rendered a decision refusing to resolve the dispute on its merits. The CRT ruled that this was because the B.C. Supreme Court would determine the issue of the petitioner’s liability relating to the ICBC dispute in the civil action, and the petitioner would have a voice in such action.
In the present case before the B.C. Supreme Court, the petitioner seeks to set aside the tribunal’s decision refusing to resolve his dispute and compel the tribunal to decide on the merits. The court ruled in the petitioner’s favour, setting the tribunal’s decision aside, remitting the dispute to the tribunal to decide on the merits and granting costs to the petitioner.
The court identified several issues with the tribunal’s analysis and ruled that the tribunal’s refusal to resolve the petitioner’s claim was patently unreasonable. The tribunal exercised its discretion arbitrarily, based its decision on predominantly irrelevant or non-existent facts and acted with an apparently honest but mistaken understanding of civil procedure and insurance legislation, said the court.
The tribunal failed to realize that the petitioner’s claim against ICBC was not based on tort but instead on contract, statute or both. The petitioner questioned whether the ICBC acted properly and reasonably, which was an issue that the B.C. Supreme Court would not decide.
The court said that the tribunal should have at least inquired whether the civil action would affect the ICBC’s internal determination of the petitioner’s liability. In fact, the ICBC made it clear that the civil action would not impact this internal determination.
The court ruled that no judicial deference could justify letting the tribunal’s decision stand. “To hold otherwise would be to leave the petitioner with no recourse to resolve his claim against ICBC, which is squarely within the monetary and subject matter jurisdiction of the CRT,” wrote Justice Catherine Murray for the court.