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    May 23rd, 2022

    ♫ There’s a light at the end of the tunnel
    There’s a chance that it ain’t gonna rain
    There’s a light at the end of the tunnel
    And for once it ain’t a fast moving train…♫

    Music and Lyrics by Don Cook, Keith Whitley, recorded by Keith Whitley.

    On May 12, 2022 the British Columbia Court of Appeal issued reasons in the case of:

    Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2022 BCCA 163.

    The case concerns the establishment of British Columbia’s Civil Resolution Tribunal and in particular, its jurisdiction over ‘minor’ injuries in motor vehicle accidents.

    The history of the case is summarized in the headnote:

    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 Trial Lawyers were successful at trial before Chief Justice Hinkson of the Supreme Court. On appeal, The Honourable Chief Justice Bauman stated:

    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.

    I have concluded that he erred in doing so.

    In so doing, concurred by The Honourable Mr. Justice Butler (with Dissenting Reasons by The Honourable Madam Justice Bennett), the majority of the court has resuscitated the ongoing experiment in access to justice represented by the BC Civil Resolution Tribunal in the area of automotive injury resolution.

    A bit of an explanation is required. The CRT – or Civil Resolution Tribunal – is a creature of statute. The CRT is Canada’s first online tribunal. It is part of the British Columbia public justice system and it represents an example of moving public justice out of the ‘bricks and mortar’ world into the ‘clicks and order’ world of the Internet and Online Dispute Resolution. It represents a growing body of thought called Court-related dispute resolution.

    What is court-related dispute resolution? The National Center for State Courts ( states:

    Court-related Online Dispute Resolution (ODR) is a public facing digital space in which parties can convene to resolve their dispute or case.

    Three essential components differentiate court-related ODR from other forms of technology-supported dispute resolution:

    The first is that the program operates exclusively online. In contrast to other court programs that provide an online interface with which to accomplish discrete tasks (e.g., e-filing, video hearings), ODR users do not otherwise interact with the court for traditional in-court procedures or events.

    The second is that the program is explicitly designed to assist litigants in resolving their dispute or case, rather than a technology platform to support judicial or court staff decision-making. Dispute resolution inherently includes the potential to challenge the validity of claims or to raise affirmative defenses; court-related ODR is not merely a platform for defendants to negotiate a payment schedule to satisfy debts.

    Third, the program is hosted or supported by the judicial branch. It is not a form of private ADR, but instead integrates and extends dispute resolution services offered by the judicial branch into digital space to serve citizens efficiently, effectively, transparently, and fairly.

    Chief Justice Bauman summarized the challenge to the jurisdiction of the CRT as follows:

    [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.

    In essence the question became: Are the courts tied to the format of the courts as outlined in 1867 in  s. 96 or can a province create an administrative tribunal (the CRT) that represents an ‘experiment’ in access to justice that can exist as part of the Justice System?

    The Court recognized the broader implications raised by the challenge to the CRT and the Chief Justice stated in his reasons as follows:

    Important Societal Objective

    [147] I will deal with each of these factors in turn but I will begin with the last factor—an 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 innovation—in 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 concern—a 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.

    The Chief Justice goes on and then states:

    [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.

    By no means do I advocate that the CRT is a perfect solution or that it does not have faults. It represents a new way of dealing with legal disputes and as such, it can, and indeed should, be modified, changed and adjusted to address perceived shortcomings. The world is watching the CRT and waiting to see if the concept can be applied to other courts and proceedings in other jurisdictions. It would be a major setback for access to justice innovators to see the CRT’s jurisdiction erased and the experiment stopped.

    The decision may, and most probably will,  be taken to the Supreme Court of Canada. I for one hope that the Supreme Court of Canada follows the lead of Chief Justice Bauman. For those of us who advocate for greater access to justice, who advocate for innovative approaches to addressing injustice and providing cost-justified solutions to everyday legal problems, who advocate for solutions that take advantage of all the barrier-breaking power that technology developed in today’s information age can provide, and for solutions that are not hide-bound by the structure of the justice system prevailing in 1867, the words of Chief Justice Bauman represent a light at the end of the tunnel…

    (Full disclosure: the writer is a Fellow of the National Center for Technology and Dispute Resolution at the University of Massachusetts and has written and presented on Online Dispute Resolution worldwide).

    © 2022 David J. Bilinsky

    (Concurrently published both on and this blog.)

    This entry was posted on Monday, May 23rd, 2022 at 7:00 am and is filed under Technology. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.
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