Section 96 and British Columbia’s Civil Resolution Tribunal: Trial Lawyers’ Association of British Columbia v British Columbia (Attorney General), 2021 BCSC 348
Earlier this week, the Supreme Court of British Columbia handed down an important — perhaps even monumental — decision on s. 96 of the Constitution Act, 1867: Trial Lawyers’ Association of British Columbia v British Columbia (Attorney General), 2021 BCSC 348. Hinkson CJ held that the legislation giving the province’s Civil Resolution Tribunal jurisdiction over motor accident claims up to $50,000 and other matters arising under provincial insurance law is unconstitutional.
I was an expert witness for the CRT in this matter (see paras. 331-336) so I will refrain from commenting on Hinkson CJ’s analysis. Here are the key excerpts from his judgment:
 When the CRT was first created, its enabling legislation granted it jurisdiction over strata property disputes. On June 1, 2017, pursuant to B.C. Reg. 111/2017, the provincial government granted the CRT jurisdiction over small claims matters up to a monetary limit of $5,000.
 Effective April 1, 2019, the provincial government introduced a package of reforms consisting of amendments to the CRTA, the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231, and the Insurance (Vehicle) Regulation, B.C. Reg. 447/83, as well as two new regulations: the Accident Claims Regulation, B.C. Reg. 233/2018 and the Minor Injury Regulation, B.C. Reg. 234/2018.
 The Civil Resolution Tribunal Amendment Act, 2018, S.B.C. 2018, c. 17, received Royal Assent on May 17, 2018. The scheme created by these amendments in part gives the CRT jurisdiction over motor vehicle accident (MVA) claims, effective April 1, 2019.
 The CRTA amendments give the CRT jurisdiction over the determination of: (a) entitlement to no-fault accident benefits paid or payable under the Insurance (Vehicle) Act;(b) whether an injury is a “minor injury” under the Insurance (Vehicle) Act;and (c) liability and damages for personal injury of $50,000 or less.
 The amendments to the Insurance (Vehicle) Act include a new cap on the amount of non-pecuniary damages that may be awarded in claims based on minor injuries.
 All parties before me agree that the test to be applied on the plaintiffs’ application is that initially set out by the Supreme Court of Canada in Residential Tenancies Act, 1979,  1 S.C.R. 714 [Residential Tenancies 1981], and developed in subsequent cases. In that case, Mr. Justice Dickson, as he then was, commented on the importance of s. 96 of the Constitution Act, 1867 as a unifying national force to counterbalance provincial legislative power at 728:
Under s. 92(14) of the B.N.A. Act the provincial legislatures have the legislative power in relation to the administration of justice in the province. This is a wide power but subject to subtraction of ss. 96 to 100 in favour of the federal authority… Section 92(14) and ss. 96 to 100 represent one of the important compromises of the Fathers of Confederation. It is plain that what was sought to be achieved through this compromise, and the intended effect of s. 96, would be destroyed if a province could pass legislation creating a tribunal, appoint members thereto, and then confer on the tribunal the jurisdiction of the superior courts. What was conceived as a strong constitutional base for national unity, through a unitary judicial system, would be gravely undermined. Section 96 has thus come to be regarded as limiting provincial competence to make appointments to a tribunal exercising s. 96 judicial powers and therefore as implicitly limiting provincial competence to endow a provincial tribunal with such powers.
 At 734–736, Dickson J. articulated a three-part test (which I will refer to hereafter as the “Residential Tenancies test”) to determine the constitutionality of the conferral of jurisdiction on an inferior court or tribunal:
The jurisprudence since John East leads one to conclude that the test must now be formulated in three steps. The first involves consideration, in the light of the historical conditions existing in 1867, of the particular power or jurisdiction conferred upon the tribunal. The question here is whether the power or jurisdiction conforms to the power or jurisdiction exercised by superior, district or county courts at the time of Confederation…
If the historical inquiry leads to the conclusion that the power or jurisdiction is not broadly conformable to jurisdiction formerly exercised by s. 96 courts, that is the end of the matter. As Rand J. noted in Dupont et al. v. Inglis et al. [ S.C.R. 535], “Judicial power not of that type, [i.e. that exercised by s. 96 courts at Confederation] such as that exercised by inferior courts, can be conferred on a provincial tribunal whatever its primary character” (p. 542). If, however, the historical evidence indicates that the impugned power is identical or analogous to a power exercised by s. 96 courts at Confederation, then one must proceed to the second step of the inquiry.
Step two involves consideration of the function within its institutional setting to determine whether the function itself is different when viewed in that setting. In particular, can the function still be considered to be a ‘judicial’ function? In addressing the issue, it is important to keep in mind the further statement by Rand J. in Dupont v. Inglis that “… it is the subject-matter rather than the apparatus of adjudication that is determinative”. Thus the question of whether any particular function is ‘judicial’ is not to be determined simply on the basis of procedural trappings. The primary issue is the nature of the question which the tribunal is called upon to decide. Where the tribunal is faced with a private dispute between parties, and is called upon to adjudicate through the application of a recognized body of rules in a manner consistent with fairness and impartiality, then, normally, it is acting in a ‘judicial capacity’. To borrow the terminology of Professor Ronald Dworkin, the judicial task involves questions of ‘principle’, that is, consideration of the competing rights of individuals or groups. This can be contrasted with questions of ‘policy’ involving competing views of the collective good of the community as a whole. (See Dworkin, Taking Rights Seriously (Duckworth, 1977) pp. 82-90.)
If, after examining the institutional context, it becomes apparent that the power is not being exercised as a “judicial power” then the inquiry need go no further for the power, within its institutional context, no longer conforms to a power or jurisdiction exercisable by a s. 96 court and the provincial scheme is valid. On the other hand, if the power or jurisdiction is exercised in a judicial manner, then it becomes necessary to proceed to the third and final step in the analysis and review the tribunal’s function as a whole in order to appraise the impugned function in its entire institutional context. The phrase—’it is not the detached jurisdiction or power alone that is to be considered but rather its setting in the institutional arrangements in which it appears’—is the central core of the judgment in Tomko. It is no longer sufficient simply to examine the particular power or function of a tribunal and ask whether this power or function was once exercised by s. 96 courts. This would be examining the power or function in a ‘detached’ manner, contrary to the reasoning in Tomko. What must be considered is the ‘context’ in which this power is exercised. Tomko leads to the following result: it is possible for administrative tribunals to exercise powers and jurisdiction which once were exercised by the s. 96 courts. It will all depend on the context of the exercise of the power. It may be that the impugned ‘judicial powers’ are merely subsidiary or ancillary to general administrative functions assigned to the tribunal (John East; Tomko) or the powers may be necessarily incidental to the achievement of a broader policy goal of the legislature (Mississauga). In such a situation, the grant of judicial power to provincial appointees is valid. The scheme is only invalid when the adjudicative function is a sole or central function of the tribunal (Farrah) so that the tribunal can be said to be operating ‘like a s. 96 court’.
 Thus, the test begins with a historical inquiry into which courts had jurisdiction over the impugned subject matter at Confederation. If necessary, it proceeds next to consider whether the power exercised truly has a judicial character; and finally, it asks whether, in the institutional context of the legislative scheme, the power exercised is still in the nature of a s. 96 court power, or whether it has been transformed to a power that is ancillary or necessarily incidental to the new scheme or legislative goal.
 The first step of the Residential Tenancies test looks at the historic conditions existing in 1867. The inquiry begins with characterizing the relevant power granted to the tribunal. Once the power is characterized, the focus is on whether the power broadly conforms to a jurisdiction exercised exclusively by s. 96 courts at Confederation.
 The plaintiffs argue that the jurisdiction granted to the CRT, which they characterize as personal injury claims in tort, was exclusive to s. 96 courts at Confederation. I begin here, then turn to the plaintiffs’ alternative argument, that even if superior and inferior courts exercised concurrent jurisdiction pre-Confederation, the inferior courts’ jurisdiction was limited monetarily and does not support the grant of jurisdiction to the CRT over claims up to $50,000.
 I find that for the purposes of the Residential Tenancies test, the jurisdiction conferred upon the CRT under s. 133(1) of the CRTA should properly be characterized as personal injury claims in tort. This characterization is sufficiently narrow to reflect the types of disputes the CRT is tasked with deciding.
 I agree with the plaintiffs that this characterization also captures the CRT’s minor injury determination jurisdiction in s. 133(1)(b), as that determination goes directly to the amount of damages a successful claimant would be entitled to receive.
 The Attorney General also argues that the subject matter of the jurisdiction in issue is novel, and thus intra vires the province’s legislative ability, so the plaintiffs’ claim should fail at the first step of the Residential Tenancies test. It is the Attorney General’s position that in the period leading up to Confederation, litigants essentially did not file personal injury claims seeking damages in relation to unintentional torts, whether in the context of road accidents or even personal injury more generally.
 The Attorney General further submits that the CRT’s minor injury classification jurisdiction is novel because it requires the CRT to interpret the statutory definition of “minor injury” in the Insurance (Vehicle) Act, a statute first enacted in 1973. The Attorney General says the plaintiffs have pointed to no comparable statutory concepts in existence at the time of Confederation, nor have they identified any analogous common law principles.
 In my view, the Attorney General’s arguments fail to properly grasp the concept of novelty. It is my view that jurisdiction can only be “novel” if there is a truly new regime of rights and entitlements requiring determination, or if jurisdiction historically exercised by the superior courts is now animated by a distinctly different organizational or operational principle or philosophy (Residential Tenancies 1996).
 In this case, the CRT’s power to decide liability and damages in relation to unintentional injuries caused by another is precisely the sort of work the superior courts have traditionally done. The legislation at issue has not introduced a “distinctly different organizational principle or operational philosophy” that fundamentally alters the nature of the issues to be decided by the CRT. Nor has the legislation introduced a comprehensive regime of new rights and entitlements.
 Once the power in question is characterized, the focus of the first step of the Residential Tenancies test turns to exclusivity.
 The superior courts in the provinces and territories all possess inherent jurisdiction — the legacy left to them from the so-named English doctrine. Chief Justice Lamer confirmed the importation of the inherent jurisdiction to the superior courts in MacMillan Bloedel, citing with approval the view of I.H. Jacob at 749–750.
 Given the inherent jurisdiction of the superior courts at the time of Confederation, I find that at that time the superior courts had jurisdiction over what the plaintiffs refer to as personal injury claims or personal injury claims in tort, and what the motor vehicle defendants refer to as non-fatal personal injury claims.
 In conclusion, I have found that the jurisdiction of the superior courts at Confederation, as defined by the statutes and similar instruments, was exclusive in three of the four confederating colonies, and the limited evidentiary record has not persuaded me otherwise.
 I accept the Attorney General’s observation that the plaintiffs have failed to adduce any evidence to prove that monetary limitations on inferior courts’ personal injury jurisdiction defeat a finding of concurrency in this case. I cannot rely upon the findings of the Quebec Court of Appeal in the Article 35 Reference to establish an updated value of prior monetary limits, as those findings were based upon expert evidence that was before that Court on that issue, but is not in evidence in the present instance.
 I therefore find that the plaintiffs have failed to establish that the monetary limit of $50,000 is inconsistent with the monetary limits on some inferior courts at the time of Confederation. However, this does not affect my finding that the subject matter jurisdiction granted to the CRT under the CRTA was exclusive to the superior courts at the time of Confederation.
[Step 2 of Residential Tenancies]
 The motor vehicle defendants maintain that, although the CRT in some cases engages in adjudication, the CRT’s overall function is not judicial.
 They say that for the disputes that do require a hearing, the CRT is authorized to “ask questions of the parties and witnesses” and “inform itself in any other way it considers appropriate” (CRTA, ss. 42(1)(b) and (c)). They argue that these “inquisitorial functions are distinctly not court like”. Moreover, they say, even at the adjudicative phase, the focus continues to be on de-escalation of disputes, both through the involvement of case managers and the use of asynchronous processes.
 The Attorney General concedes that — at least where disputes proceed to the tribunal hearing phase — the jurisdiction of the CRT under s. 133(1)(b) and (c) of the CRTA require it to perform a judicial function. The Attorney General acknowledges that determinations of whether an injury is minor and determinations of liability and damages require the CRT to apply statutory and common law principles to determine the rights of the parties to the dispute.
 The primary issues that the CRT is called upon to decide pursuant to s. 133(1)(b) and (c) of the CRTA are the liability of those involved in MVAs, and the damages to which they are entitled as a result of the injuries that they sustained in their accidents. Where the impugned legislation permits either this Court or the CRT to resolve claims, it is difficult to see that role under the impugned sections as other than a judicial one. I find that the power to resolve these issues is a judicial power.
 That part of the legislative scheme to assist minor MVA claimants in understanding their rights and steering them towards a consensual resolution of their claims is the apparatus of adjudication, or its procedural trappings, not the subject matter that the CRT is to determine.
 I find the function that the impugned legislation purports to grant to the CRT is a judicial function as that term relates to Step 2 of the Residential Tenancies test.
 I am not persuaded that the CRT’s power to make determinations under s. 133 of the CRTA is necessarily incidental to the Legislature’s goal of enhancing access to justice for low-value MVA claims. In my opinion, the CRT’s powers are far more significant and are part of the scheme to transfer adjudicative power over tort claims from the Supreme Court to the administrative tribunal (the CRT).
 The plaintiffs also dispute the Attorney General’s argument that the CRT’s judicial powers are necessarily incidental to the achievement of its motor vehicle insurance-related objectives, including those pertaining to road safety, premiums and benefits. They say the Attorney General has offered little more than the observation that the impugned grant was enacted at the same time as a larger suite of legislative and policy initiatives.
 I accept the plaintiffs’ point that insofar as the argument that the CRT’s impugned power is necessarily incidental to the achievement of its motor vehicle insurance-related objectives, there is an absence of any meaningful explanation of the actual interrelationship between the impugned grant and the substantive content of the scheme to support the assertion that the CRT is “necessarily incidental” to any of the substantive or policy measures.
 I therefore find that the judicial powers conferred on the CRT under s. 133 of the CRTA are not necessarily incidental to the Legislature’s policy goals of enhancing access to justice and preserving the sustainability of the public automobile insurance system.
 The plaintiffs argue that all s. 133 of the CRTA accomplishes is the transfer of adjudicative power over conventional tort claims to the CRT. The plaintiffs say that substantive changes like the “minor injury” cap, are what are “subsidiary or ancillary” to the CRT’s grant of jurisdiction. They say that such a cap could be applied by the Court, as is done with the so-called cap on non-pecuniary awards following the decisions of the Supreme Court of Canada in the trilogy of cases in 1978 that included, for example, Thornton v. School District No. 57 (Prince George),  2 S.C.R. 267, without offending the constitution.
 The plaintiffs argue that the essence of any system that has adjudication as its ultimate step is the looming prospect that parties’ will have to make their substantive case to the adjudicator. This, they say, is what brings parties to the table and causes them to take steps to come together and endeavour to resolve their claims. They describe the motor vehicle defendants’ submissions as a “dramatic new understanding of powers that are merely subsidiary or ancillary to the general administrative functions assigned to the tribunal”. They say the motor vehicle defendants’ arguments suggest that the Legislature can develop new ways of resolving disputes, to which a judicial power can then be subsidiary or ancillary.
 This thinking, the plaintiffs argue, is circular. The plaintiffs say, and I agree, that to describe the adjudication of a private dispute between parties that the CRT performs as somehow subsidiary to the resolution of disputes is not in keeping with the Residential Tenancies framework because such adjudication is by definition the resolution of the dispute.
 Therefore, I find that the judicial powers conferred upon the CRT under s. 133(1) are neither subsidiary nor ancillary to any general administrative functions.
Plainly, this is a very important case with significant consequences for the CRT itself and for other contemporary administrative tribunals.
This content has been updated on March 5, 2021 at 20:15.