Not so minor
A dramatic change in motor vehicle litigation will occur on April 1, 2019: The Civil Resolution Tribunal (“CRT”) gains the exclusive jurisdiction to decide whether injuries suffered by motor vehicle accident victims are “minor injuries.” The stakes are high: if tagged with a “minor injury” label, the Insurance (Vehicle) Act caps recovery for pain and suffering (non-pecuniary damages or “non-pecs”) at $5,500. Prior to this regime change, plaintiffs suffering “minor injuries” regularly received non-pecuniary awards up to and exceeding $100,000.
While it may sound like a cruel April Fool’s prank to suggest plaintiffs’ counsel will now have to traipse off to an administrative tribunal to dispute the applicability of the $5,500 cap, the change is real.
The prospect of sorting victims into two categories, those whose non-pecs are capped and those whose are not, is daunting. It is also fraught with constitutional concerns, making the decisions of the CRT ripe for challenge on judicial review.
For example, under the “minor injury” scheme, a limited class of physical injuries – currently abrasions, contusions, lacerations, and certain strains, sprains, concussions, whiplash associated disorders, and jaw injuries – qualify as “minor injuries.” Pain, psychological, or psychiatric condition are also “minor injuries,” so long as they do not last for more than 12 months and make the plaintiff unable to work, go to school, or perform activities of daily living. Court challenges alleging that physical injuries are treated more favourably than psychological injuries appear inevitable.
Furthermore, as administrative decision-makers, CRT adjudicators will have to apply Charter values in making their decisions; consequently, plaintiffs’ counsel might have to wade into the murky and unfamiliar waters of Charter law in order to avoid the cap.
Raising a Charter issue at the CRT presents several concerns. Most significantly, the CRT has no jurisdiction to resolve a constitutional question, so a direct Charter challenge to the legislation itself must occur at Supreme Court. Despite this lack of jurisdiction however, the CRT is obliged to consider Charter values arguments, which are likely to arise in two situations.
First, Charter values must be applied by the CRT to interpret legislation in the face of ambiguity in the legislation. Given the heavy lifting that the definitions of “minor injury” and “serious impairment” perform, it is inevitable that there will be ambiguities when the CRT applies these definitions to particular facts. For example, will the CRT conclude that an injury rendering one plaintiff unable to work does not prevent a different stay-at-home plaintiff from performing the daily activities of daily living, a division historically made on gender lines? Is such an interpretation of “minor injury” in line with Charter value of equality?
Second, CRT adjudicators must exercise discretion in a manner consistent with Charter values. The privative clause contained in the amended statute suggests many of the CRT’s decisions are, to at least some extent, discretionary. Potentially crucial decisions, such as whether to grant extensions of time or admit certain evidence, almost certainly involve exercises of discretion. When exercising discretion, the CRT must not unreasonably limit Charter protections in light of the legislative objective of the statutory scheme. It is inevitable that CRT adjudicators will be required to consider the values of dignity, equality, autonomy, fairness and privacy when exercising their discretion in motor vehicle claims.
It remains to be seen whether the CRT is up to the challenge of applying Charter values in the context of motor vehicle adjudications. The significance of the cap for non-pecuniary damages, however, suggests that plaintiffs’ counsel will have to consider raising Charter value arguments at the CRT and at the Supreme Court on judicial review. Given this new workload, the headaches the new scheme causes for motor vehicle accident lawyers may not be so minor at all.
Matthew R. Voell, Barrister & Solicitor (civilresolutiontribunal.ca) and Oliver Pulleyblank, Pulleyblank Law.