COURT OF APPEAL FOR BRITISH COLUMBIA  
Citation:  
Trial Lawyers Association of British Columbia  
v. British Columbia (Attorney General),  
2022 BCCA 163  
Date: 20220512  
Dockets: CA47320; CA47332  
Docket: CA47320  
Between:  
Trial Lawyers Association of British Columbia, Philip Whealy,  
Khadija Ramadhan, Sahra Leidtke and Melissa Rondpre  
Respondents/  
Appellants on Cross Appeal  
(Plaintiffs)  
And  
And  
Attorney General of British Columbia  
Appellant/  
Respondent on Cross Appeal  
(Defendant)  
Robert Dockrill, Judith Dockrill, Sukhjinder Singh Bath, 0731534 B.C. Ltd.,  
Wendy June Fraser, Create Fun Event Company Ltd. and  
Emmanuel Martin Blackburn  
Respondents  
(Defendants)  
- and -  
Docket: CA47332  
Between:  
Trial Lawyers Association of British Columbia, Philip Whealy,  
Khadija Ramadhan, Sahra Leidtke and Melissa Rondpre  
Respondents/  
Appellants on Cross Appeal  
(Plaintiffs)  
And  
Attorney General of British Columbia  
Respondent  
(Defendant)  
Trial Lawyers Association of British Columbia v.  
British Columbia (Attorney General)  
Page 2  
And  
Robert Dockrill, Judith Dockrill, Sukhjinder Singh Bath, 0731534 B.C. Ltd.,  
Wendy June Fraser, Create Fun Event Company Ltd. and  
Emmanuel Martin Blackburn  
Appellants/  
Respondents on Cross Appeal  
(Defendants)  
Before:  
The Honourable Chief Justice Bauman  
The Honourable Madam Justice Bennett  
The Honourable Mr. Justice Butler  
On appeal from: An order of the Supreme Court of British Columbia,  
dated March 2, 2021 (Trial Lawyers Association of British Columbia v.  
British Columbia (Attorney General), 2021 BCSC 348, Vancouver Docket S193931).  
Counsel for the Attorney General of  
British Columbia:  
S.A. Bevan  
M.A. Witten  
Counsel for Trial Lawyers Association of  
British Columbia, Philip Whealy,  
Khadija Ramadhan, Sahra Leidtke and  
Melissa Rondpre:  
K.M. Stephens  
A. Calvert  
Counsel for Robert Dockrill, Judith Dockrill,  
Sukhjinder Singh Bath, 0731534 B.C. Ltd.,  
Wendy June Fraser, Create Fun Event  
Company Ltd. and  
A.M. Gunn, Q.C.  
R.W. Parsons  
R.J.B. Gage  
Emmanuel Martin Blackburn:  
Place and Dates of Hearing:  
Place and Date of Judgment:  
Vancouver, British Columbia  
January 20 and 21, 2022  
Vancouver, British Columbia  
May 12, 2022  
Written Reasons by:  
The Honourable Chief Justice Bauman  
Concurred in by:  
The Honourable Mr. Justice Butler  
Dissenting Reasons by:  
The Honourable Madam Justice Bennett  
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British Columbia (Attorney General)  
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Summary:  
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 Attorney General of British Columbia appeals, as do several defendants in  
motor vehicle claims. They argue, among other things, that the judge erred in his  
approach to the historical inquiry regarding the jurisdiction of inferior and superior  
courts at Confederation. Further, they argue that the grant of jurisdiction does not  
offend the core-jurisdiction test recently formulated by the Supreme Court of Canada  
in Reference re Code of Civil Procedure (Que.), art. 35, 2021 SCC 27.  
Held: Appeal allowed. First, the historical inquiry reveals that at Confederation, in at  
least two of the four confederating provinces, jurisdiction over ‘personal injury claims  
in tort’ (whether or not considering related property damage claims) was generally  
shared between inferior and superior courts. Second, the impugned scheme does  
not impermissibly invade the core jurisdiction of the Supreme Court of British  
Columbia. The core-jurisdiction test is intended to protect the essential character of  
superior courts: as primary guardians of the rule of law, playing a significant role in  
the development of the common law, and maintaining national unity. Highlighting  
only some of the factors: the Supreme Court of British Columbia retains significant  
involvement over personal injury and tort law generally; there are several avenues  
for the Supreme Court to retain jurisdiction over the sort of motor vehicle claims at  
issue in this litigation; the Supreme Court plays a robust role on judicial review; and  
the scheme was enacted to further an important societal objective. The province had  
identified that the existing system of compensating for minor personal injuries in tort  
was threatening the viability of the public insurer, ICBC, and equally the actual  
compensation recovered by the victims of these minor injuries. The impugned  
scheme is an experiment with a new form of access to justice and represents an  
Trial Lawyers Association of British Columbia v.  
British Columbia (Attorney General)  
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integrated comprehensive effort at reform directed at a social mischief identified by  
other branches of government.  
Dissent: Bennett J.A. would dismiss the appeal. The reasons of Chief Justice  
Bauman are concurred with regarding the application of the Residential Tenancies  
test and the cross-appeal. The basis for dismissing the appeal lies in the application  
of the core jurisdiction test. The impugned sections of the CRTA infringe s. 96. The  
CRT has been established as a parallel court assigned to deal with personal injury  
from motor vehicle claims. As a result, the unity and uniformity of the Canadian  
judicial system is undermined, and the core jurisdiction of the superior court has  
been impermissibly infringed.  
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British Columbia (Attorney General)  
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Table of Contents  
Paragraph  
Range  
REASONS FOR JUDGMENT OF THE HONOURABLE  
CHIEF JUSTICE BAUMAN:  
[1] - [12]  
I. OVERVIEW  
[1] - [12]  
[13] - [37]  
[13] - [23]  
[24] - [37]  
[38] - [51]  
[52] - [55]  
[56] - [83]  
[60]  
II. THE SCHEME  
A. Background: The Ernst & Young Report  
B. The Scheme  
III. SUMMARY OF THE JURISPRUDENCE  
IV. THE PARTIES AND PROCEDURAL HISTORY  
V. THE CHAMBERS JUDGMENT  
A. Characterization  
B. Residential Tenancies Step One – The Historical Analysis  
C. Residential Tenancies Step Two – A Judicial Function?  
[61] - [70]  
[71] - [72]  
[73] - [81]  
D. Residential Tenancies Step Three – The Institutional  
Setting  
E. Section 16.1 of the CRTA  
F. Remedy  
[82]  
[83]  
VI. ALLEGED ERRORS AND ARGUMENT  
A. Step One of Residential Tenancies  
B. Step Three of Residential Tenancies  
C. Core Jurisdiction  
[84] - [101]  
[85] - [94]  
[95] - [98]  
[99] - [101]  
[102] - [180]  
[106] - [131]  
[132] - [180]  
[147] - [169]  
[170] - [173]  
[174] - [175]  
[176]  
VII. ANALYSIS  
A. Historical Considerations  
B. Core Jurisdiction Test  
(vi) Important Societal Objective  
(i) Scope of Jurisdiction  
(ii) Concurrency or Exclusivity of the Grant  
(iii) The Monetary Limits  
(iv) Appeal Mechanisms  
[177] - [179]  
[180]  
(v) Impact on Supreme Court’s Caseload  
VIII. DISPOSITION  
[181] - [182]  
[183] - [184]  
REASONS FOR JUDGMENT OF THE HONOURABLE  
MADAM JUSTICE BENNETT:  
I. RESIDENTIAL TENANCIES TEST  
II. THE CORE JURISDICTION  
[185] - [191]  
[192] - [251]  
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A. Scope of the Jurisdiction  
B. Whether the Grant is Exclusive or Concurrent  
C. Monetary Limit  
[211] - [217]  
[218] - [224]  
[225] - [228]  
[229] - [234]  
[235] - [236]  
D. Appeal Jurisdiction  
E. Impact of the Caseload of the Superior Court of General  
Jurisdiction  
F. Pursuit of an Important Societal Objective  
G. Lack of Independence of the Tribunal  
H. Weighing the Factors  
[237] - [245]  
[246] - [247]  
[248] - [251]  
[252]  
III. CROSS APPEAL  
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Reasons for Judgment of the Honourable Chief Justice Bauman:  
I. Overview  
[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.  
[7]  
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.  
[8]  
I have concluded that he erred in doing so.  
   
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[9]  
In what is today the leading case on s. 96, Reference re Code of Civil  
Procedure (Que.), art. 35, 2021 SCC 27 [“Article 35 Reference”] (decided after the  
trial judgment in this matter), Chief Justice Wagner said in respect of the powers of  
the provinces under s. 92(14) and generally under the Constitution:  
[248] A number of appellants and interveners pointed out the various  
initiatives introduced by provincial legislatures that have recognized the need  
to reform some aspects of the operations of their private law courts in order to  
enhance access to justice in their province. Protection of the superior courts’  
core jurisdiction in this field should certainly not have the effect of deterring  
the provinces and territories from making essential efforts to this end. As  
Brandeis J. stated in New State Ice Co. v. Liebmann, 285 U.S. 262 (1932), at  
p. 311, “[i]t is one of the happy incidents of the federal system that a single  
courageous State may, if its citizens choose, serve as a laboratory; and try  
novel social and economic experiments without risk to the rest of the  
country.” In this sense, for the reasons set out above, the approach I am  
suggesting here does not interfere with the ability of the provinces and  
territories to experiment with new forms of access to civil justice.  
[10] The Chief Justice said this in dissent but I do not read the majority in the  
Article 35 Reference as disagreeing with these critical sentiments.  
[11] In any case, it is a question of degree whether a province has overstepped in  
its “experiment” to enhance its perception of better access to justice. And in that  
regard the court must defer to the wisdom of the legislature as to the efficacy of any  
particular “experiment.”  
[12] I note that the Trial Lawyers Association at various points has stressed that  
this case represents a grant of a judicial jurisdiction to an administrative tribunal  
allegedly lacking independence of the executive branch. I do not see this litigation as  
the proper avenue to advance a claim grounded on the CRT’s alleged lack of judicial  
independence. Such a claim should be brought in the posture that was followed in  
the Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3  
S.C.R. 3, 150 D.L.R. (4th) 577 [P.E.I. Reference], where the challenge would be to  
the law or government action that trenches on the independence that is required by  
a tribunal exercising a sufficiently important judicial function (there, ss. 7 and 11(d) of  
the Charter were implicated). Alternatively, a litigant could allege a reasonable  
apprehension of bias on judicial review of a CRT decision—an allegation for which  
Trial Lawyers Association of British Columbia v.  
British Columbia (Attorney General)  
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there is no evidence in this record. Indeed, the alleged “lack of independence”  
submission was not developed in any meaningful way in this Court or in the  
Supreme Court. Lack of independence in the recipient tribunal is a question  
separate from whether a grant of jurisdiction invades the core jurisdiction of the  
superior courts.  
II. The Scheme  
A. Background: The Ernst & Young Report  
[13] I begin with a review of the societal and policy context revealed by a report  
authored by Ernst & Young (the “EY Report”). It was delivered to the government on  
10 July 2017. The Attorney General relies on this report as part of the legislative  
history having been referenced in the legislative debates. The chambers reasons  
also briefly discuss the EY Report (at paras. 309–11). In my view, its conclusions are  
critical reading in this matter.  
[14] The purpose of the EY Report was to investigate the long-term affordability of  
auto insurance in the province and to provide a range of options to the Insurance  
Corporation of British Columbia (“ICBC”) and the government that would increase  
fairness and affordability while keeping basic premium increases in line with inflation.  
The report was premised on affordability, efficiency, sustainability, fairness, and  
simplicity of the ICBC insurance product as guiding principles.  
[15] The report estimated that under the automobile insurance system as it then  
existed, if ICBC were to cover its costs, by 2019 the average driver in British  
Columbia would see their premium increase by over 30% compared to those in  
effect in 2017. A breakdown of ICBC’s operating expenses for its basic insurance  
product in policy year 2016 showed that ICBC was spending more on legal costs  
(24%) than on minor injuries (20%) or on non-minor injuries (17%).  
[16] The report noted that British Columbia was the only province that was still  
using an unmodified “litigation-based” “adversarial model” in which not-at-fault  
drivers sued at-fault drivers. Other provinces in Canada have undergone reforms to  
   
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control escalating claims costs and to maintain affordability. The report identified five  
main issues driving the unsustainability of British Columbia’s insurance system as it  
existed at the time: (1) more accidents were occurring; (2) the increase in claims  
was outpacing the increase in accidents; (3) average settlements for minor injuries  
were increasing; (4) claim costs for minor injuries “increased from 30% to almost  
60% of total bodily injury claims costs since 2000”; and (5) premiums were not  
covering claim costs. The options presented by the report were intended to address  
these issues.  
[17] One stark comparison highlights the significance of minor injuries. The  
average settlement for a minor injury in the year 2000 was $8,220. By 2016, it was  
$30,038, an increase of 365%. Over that same period, the payout for non-minor  
injuries increased from $38,014 to $48,078, an increase of 26.5%.  
[18] The report concluded that comprehensive reform was needed if these issues  
were to be resolved. It presented options grouped into three categories: (1) road  
safety; (2) re-design of the insurance product, where the “bulk of the savings will  
come from”; and (3) process and productivity improvements. Relevant for this appeal  
is the second category of reforms.  
[19] Regarding the insurance product re-design, the report presented a spectrum  
of options spanning from an approach that retained the litigation-based model but  
adding caps on damage awards for minor injuries, to a largely litigation-free  
approach, where the right to sue would be abrogated other than in limited  
circumstances and accident benefits would be significantly increased. Options  
situated in the middle of that spectrum included the introduction of an “independent  
dispute resolution system” to “decrease reliance on courts.”  
[20] The report described various alternative dispute resolution models. One  
would be an alternative dispute resolution body that is multi-purpose, not dealing  
exclusively with personal injury claims. Another option would be a body created  
specifically for alternative dispute resolution of personal injury claims. In all the  
comparative models the authors reviewed, there was space for court involvement at  
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some stage. For example, in Saskatchewan, an Automobile Injury Appeal  
Commission hears no-fault benefit appeals. Its decisions are binding, but the  
claimant can appeal further to the Court of Appeal on questions of law. The report  
proposed that such an alternative dispute resolution service “could be compulsory  
for both parties but with exemptions and access to court after process if no  
resolution achieved.”  
[21] The report also recognized that a degree of independence would be required  
(EY Report at 113):  
The new litigation and alternate dispute resolution system would require the  
setting up of a government body independent of ICBC to manage the new  
system to ensure an appropriate balance in its operations between ICBC and  
claimants.  
[22] The report envisioned that implementation of any reforms would happen in  
“several parallel streams” and that “the reforms must be seen as a total package;  
otherwise, unforeseen undesirable consequences are more likely to emerge.”  
[23] The impugned scheme (described next) is consistent with a mid-point on the  
spectrum of options presented in the report. Today’s scheme (described in brief at  
para. 37, below, and in effect since 1 May 2021) is more akin to the fully care-based  
approach presented in the report, abrogating the right to sue for personal injury  
damages except in limited circumstances.  
B. The Scheme  
[24] The impugned scheme was introduced by legislation and regulation in 2018,  
coming into force on 1 April 2019.1 The scheme created a statutory category of  
injuries called minor injuries: see Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231,  
s. 101 [IVA]; Minor Injury Regulation, B.C. Reg. 234/2018. The scheme caps the  
1 See Civil Resolution Tribunal Amendment Act, 2018, S.B.C. 2018, c. 17 (introducing amendments to  
the Civil Resolution Tribunal Act, S.B.C. 2012, c. 25, the Insurance (Vehicle) Act, R.S.B.C. 1996,  
c. 231, and other related acts) [CRTAA]. See also B.C. Reg. 232/2018 (bringing into force aspects of  
the CRTAA not specific to accident claims on 1 January 2019); B.C. Reg. 233/2018 (bringing into  
force accident-claim specific aspects of the CRTAA on 1 April 2019); B.C. Reg. 234/2018 (amending  
the Insurance (Vehicle) Regulation, B.C. Reg. 447/83 and making the Minor Injury Regulation, B.C.  
Reg. 234/2018, effective 1 April 2019).  
 
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amount recoverable by a claimant for non-pecuniary damages from “minor injuries”  
incurred in an accident: see IVA, s. 103; Minor Injury Regulation, s. 6 (declaring the  
minor injury limit in 2019 to be $5,500 and that it be updated each year based on the  
consumer price index).  
[25] Subsection 133(1) of the amended Civil Resolution Tribunal Act, S.B.C. 2012,  
c. 25 [CRTA], gives jurisdiction to the CRT “in a dispute, in respect of an accident,  
over a claim concerning one or more of the following”:  
(a)  
(b)  
(c)  
the determination of entitlement to benefits paid or payable under the  
Insurance (Vehicle) Act;  
the determination of whether an injury is a minor injury for the  
purposes of the Insurance (Vehicle) Act;  
liability and damages, if the amount, including loss or damage to  
property related to the accident but excluding interest and any  
expenses referred to under section 49 [order for payment of  
expenses], is less than or equal to the tribunal limit amount.  
[26] Of those, only ss. 133(1)(b) and (c) are at issue in this appeal. For the  
purpose of ss. 133(1)(b) and (c), accident “means an accident occurring in British  
Columbia that is caused by a vehicle or the use or operation of a vehicle as a result  
of which a person suffers bodily injury”: CRTA, s. 132(a); IVA, s. 101. The tribunal  
limit amount is currently set by regulation to $50,000: Accident Claims Regulation,  
B.C. Reg. 233/2018, s. 7.  
[27] Subsection 135(1) of the CRTA establishes a presumption that when an injury  
is a minor injury, the damages are less than or equal to the tribunal limit amount.  
That presumption can be rebutted “on the basis of satisfactory evidence that there is  
a substantial likelihood that the damages will exceed the tribunal limit amount.”  
[28] Paragraphs 133(2)(a) and (b) deem the CRT to have exclusive jurisdiction  
over the determination of whether an injury is a minor injury and specialized  
expertise (not exclusive jurisdiction) over the determination of liability and damages:  
133  
…
(2) For the purposes of this Act, the tribunal  
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(a) has exclusive jurisdiction in respect of claims described in  
subsection (1)(a) or (b) of this section, and  
(b) is to be considered to have specialized expertise in  
respect of claims described in subsection (1)(c) of this  
section.  
[Emphasis added.]  
[29] The significance of those declarations is that they limit, to a degree, the  
involvement of the Supreme Court. Section 16.1 of the CRTA says:  
16.1 (1) Subject to subsection (2) and section 16.4(1) and (2) [bringing or  
continuing claim in court], if, in a court proceeding, the court  
determines that all matters are within the jurisdiction of the tribunal,  
the court must,  
(a) in the case of a claim within the exclusive jurisdiction of  
the tribunal, dismiss the proceeding,  
(b) in the case of a claim in respect of which the tribunal is to  
be considered to have specialized expertise, dismiss the  
proceeding unless it is not in the interests of justice and  
fairness for the tribunal to adjudicate the claim, or  
(c) in any other case, stay or dismiss the proceeding, as the  
court considers appropriate, unless it is not in the interests  
of justice and fairness for the tribunal to adjudicate the  
claim.  
(2) Subject to section 16.4(1) and (2), if, in a court proceeding, a party  
alleges that a matter in a proceeding before the court relates to a  
minor injury within the jurisdiction of the tribunal under section  
133(1)(b) or (c) [claims within jurisdiction of tribunal for accident  
claims], the court must stay the proceeding until the tribunal  
determines, as applicable,  
(a) in the case of an accident claim under section 133(1)(b),  
whether an injury is a minor injury, and  
(b) in the case of an accident claim under section 133(1)(c),  
unless it is not in the interests of justice and fairness for  
the tribunal to make the determination, whether a party  
has established that there is a substantial likelihood that  
damages will exceed the tribunal limit amount.  
[30] These provisions require the Supreme Court to dismiss proceedings with  
respect to a determination of whether an injury is a minor injury (because such a  
determination is within the exclusive jurisdiction of the CRT). In the case where a  
claim relates to what the CRT has determined to be a minor injury but, contrary to  
the presumption under s. 135(1), a party alleges that the damages will exceed  
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$50,000, the Supreme Court must stay the proceedings until the CRT determines  
whether the presumption has been rebutted, “unless it is not in the interests of  
justice and fairness for the tribunal to make the determination”: CRTA, s. 16.1(2)(b).  
Similarly, the Supreme Court must dismiss proceedings for the determination of  
liability or damages less than or equal to $50,000 (over which the tribunal is deemed  
to have specialized expertise), “unless it is not in the interests of justice and fairness  
for the tribunal to adjudicate the claim”: CRTA, s. 16.1(1)(b). Said again: the  
Supreme Court need not cede jurisdiction to the CRT on the question of whether  
there is a substantial likelihood that damages will exceed the tribunal limit amount or  
on the question of ultimate liability and damages, when it is not in the interests of  
justice and fairness for the CRT to make the determination or to adjudicate the  
claim.  
[31] Sections 16.1, 133(1)(b) and (c) of the CRTA and, by reference, s. 7 of the  
Accident Claims Regulation are the impugned provisions relevant to this appeal.  
[32] While not being challenged, the provisions relating to judicial review of CRT  
decisions are also relevant. I note that the judicial-review provisions in the CRTA  
have been amended subsequent to the initiation of this action. In this action, the  
plaintiffs are challenging the validity of the impugned provisions in the context of the  
judicial-review provisions as they existed on 1 April 2019. Where I believe it will be  
helpful, I will comment on the effect of the subsequent amendments, but recognize  
that is beyond the scope of this appeal.  
[33] The judicial-review provisions in the CRTA as they were in force on 1 April  
2019 were:  
56.7 (1) The tribunal must be considered to be an expert tribunal, and  
section 58 (2) and (3) [standard of review with privative clause] of the  
Administrative Tribunals Act applies, in relation to an application for  
judicial review of a final decision of the tribunal in  
(a) a claim within the exclusive jurisdiction of the tribunal, or  
(b) a claim in respect of which the tribunal is to be considered  
to have specialized expertise.  
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(2) Subsection (1) does not apply to an application for judicial review  
of a final decision of the tribunal that relates to liability in an accident  
claim described in section 133 (1) (c) [claims within jurisdiction of  
tribunal for accident claims] of this Act.  
(3) Section 59 [standard of review without privative clause] of the  
Administrative Tribunals Act applies to an application for judicial  
review of a final decision of the tribunal in a claim other than a claim to  
which subsection (1) of this section applies.  
[Underline added.]  
[34] The subsequent amendments (Attorney General Statutes (Vehicle Insurance)  
Amendment Act, 2020, S.B.C. 2020, c. 10, s. 38; Miscellaneous Statutes  
Amendment Act (No. 2), 2021, c. 27, s. 1) altered the language of s. 56.7 so as to  
make more uniform the standards of review attracted by various decisions under  
s. 133(1). The amendments also incorporated the applicable standards directly into  
the CRTA instead of referring to the Administrative Tribunals Act, S.B.C. 2004, c. 45  
[ATA].  
[35] As the provisions operated on 1 April 2019, findings of fact and law with  
respect to damages under s. 133(1)(c) were reviewable under a correctness  
standard (due to s. 58(2)(c) of the ATA), with findings with respect to liability under  
s. 133(1)(c) reviewable under the standard set out at s. 59 of the ATA. The standard  
at s. 59 of the ATA is roughly the appellate standard of review, albeit with questions  
of mixed fact and law attracting correctness review: see Lavender Co-Operative  
Housing Association v. Ford, 2011 BCCA 114 at para. 23. As now amended,  
findings concerning claims described in s. 133(1)(c), whether regarding damages or  
liability, are reviewable under the standard set out in s. 56.8 of the CRTA, which  
reproduces the standard from s. 59 of the ATA.  
[36] The effect of the legislative amendments that occurred throughout this  
litigation can be summarized as follows: findings of fact with respect to damages  
under s. 133(1)(c) of the CRTA are today reviewed on a more deferential standard  
than they were reviewed at the outset of this litigation. On 1 April 2019, findings of  
fact with respect to damages would be reviewed for correctness. Today, findings of  
fact with respect to damages must not be set aside unless “there is no evidence to  
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support the finding, or… in light of all the evidence, the finding is otherwise  
unreasonable.”  
[37] I also note that the impugned provisions have reduced application since 1  
May 2021. On that date, s. 115 of the IVA came into force, which generally  
abrogates personal rights of action regarding “bodily injury caused by a vehicle  
arising out of an accident.”2 There are a few exceptions: IVA, ss. 114, 116. For  
example, an action or proceeding may still be commenced against a person “whose  
use or operation of a vehicle… caused bodily injury, and… results in the person’s  
conviction of a prescribed Criminal Code offence”: IVA, s. 116(2)(f). For these and  
other listed exceptions, the impugned scheme in this litigation will still have  
application.  
III. Summary of the Jurisprudence  
[38] The purpose of s. 96 is to give effect to a compromise reached at  
Confederation. Provinces have exclusive jurisdiction over the “administration of  
justice in the province”: Constitution Act, 1867, s. 92(14). But subtracted from that  
power is the power to make judicial appointments to superior courts. The federal  
power over superior court appointments furthers the twin principles of national unity  
and the rule of law: see Reference re Residential Tenancies Act, 1979, [1981] 1  
S.C.R. 714 at 728, 123 D.L.R. (3d) 554 [Residential Tenancies]; Article 35  
Reference at para. 4.  
[39] For superior courts to fulfil the objectives of maintaining national unity and  
preserving the rule of law, legislatures must not be permitted to create parallel courts  
with provincially appointed judges or to otherwise interfere with the exercise of the  
superior courts’ core jurisdiction: Article 35 Reference at para. 63. A parallel court  
that mirrors or ousts the jurisdiction that was exercised by superior courts at the time  
of Confederation would be doing the work envisioned by s. 96, but without federally  
2 These provisions were introduced through the Attorney General Statutes (Vehicle Insurance)  
Amendment Act, 2020, S.B.C. 2020, c. 10 and were brought into force on 1 May 2021 by B.C. Reg.  
4/2021.  
 
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appointed judges. The threat is that this would undermine the unitary nature of  
Canada’s judicial system and would undermine the role of superior courts as the  
“primary guardians of the rule of law”: Article 35 Reference at paras. 31 and 63.  
[40] The threat can come from inferior courts and tribunals alike. In either case,  
vesting in them “jurisdiction or powers conformable or analogous to those exercised  
by Courts which are within s. 96 represents the line that may not be crossed”  
(citations and punctuation omitted): Article 35 Reference at para. 58, citing Tomko v.  
Labour Relations Board (N.S.), [1977] 1 S.C.R. 112 at 120, 69 D.L.R. (3d) 250  
[Tomko].  
[41] The Supreme Court of Canada has developed two tests intended to police  
this line. One is the test first articulated in Residential Tenancies which is focused on  
whether the jurisdiction that has been granted to a potential “shadow” or “mirror”  
court was dominated by the superior courts at confederation. The second is a test  
focused on protecting the “core jurisdiction” of the superior courts, ensuring that  
“superior courts are not impaired in such a way that they are unable to play their role  
under s. 96”: Article 35 Reference at para. 63.  
[42] The Residential Tenancies test was summarized by the Supreme Court of  
Canada in the Article 35 Reference (at para. 59):  
…
Characterization of the grant of jurisdiction: To determine whether a grant of  
jurisdiction is constitutionally infirm, a court must first properly characterize  
the jurisdiction being transferred.  
Three steps:  
(1)  
Does the transferred jurisdiction conform to a jurisdiction that  
was dominated by superior, district or county courts at the time  
of Confederation?  
(2)  
(3)  
If so, was the jurisdiction in question exercised in the context  
of a judicial function?  
If the first two questions are answered in the affirmative, is the  
jurisdiction either subsidiary or ancillary to an administrative  
function or necessarily incidental to the achievement of a  
broader policy goal of the legislature?  
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(Residential Tenancies, at pp. 734‑36; Attorney General of Quebec v.  
Grondin, [1983] 2 S.C.R. 364; Sobeys, at p. 266; Reference re Residential  
Tenancies Act (N.S.), at paras. 32, per Lamer C.J., concurring, and 74, per  
McLachlin J. for the majority)  
[43] The burden throughout is on the plaintiff impugning the grant of jurisdiction. If  
the plaintiff fails to demonstrate that the jurisdiction was dominated by superior  
courts at confederation, or that the jurisdiction is exercised in the context of a judicial  
function, or that the jurisdiction is not subsidiary or ancillary to an administrative  
function or necessarily incidental to the achievement of a broader policy goal, the  
challenge will fail. This is so even though second and third steps of the Residential  
Tenancies test are sometimes referred to as an opportunity to “save” or “validate”  
the grant: see e.g., MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725 at 739,  
130 D.L.R. (4th) 385 [MacMillan Bloedel]; Sobeys Stores Ltd. v. Yeomans, [1989] 1  
S.C.R. 238 at 254, 57 D.L.R. (4th) 1 [Sobeys].  
[44] The core-jurisdiction test was also clarified and refined in the Article 35  
Reference. The majority described its operation as a stand-alone test:  
[63]  
The core jurisdiction test aims to do more than simply protect  
historical jurisdiction. It also ensures that superior courts are not impaired in  
such a way that they are unable to play their role under s. 96. The superior  
courts’ core jurisdiction includes the powers and jurisdiction essential to their  
role as the cornerstone of the unitary justice system and the primary  
guardians of the rule of law. These essential functions are not limited to  
inherent jurisdiction and powers in the traditional sense, but include any  
subject‑matter jurisdiction that meets this criterion. If these essential powers  
and areas of jurisdiction were transferred exclusively to another court, that  
court would become a parallel court — an outcome prohibited by the  
Constitution. It follows that the creation of a parallel court would prevent the  
superior courts from playing their constitutional role. That being said, even if  
no parallel court is created, the superior courts could be impaired to such an  
extent that they can no longer play their constitutional role. This would be the  
case if the legislature were to interfere impermissibly with the exercise of core  
jurisdiction by, for example, circumscribing it to the point of “maim[ing]” the  
superior courts in their very essence (MacMillan Bloedel, at para. 37).  
…
[68]  
The content of the core jurisdiction includes the inherent jurisdiction  
and inherent powers of a superior court recognized in MacMillan Bloedel:  
namely, review of the legality and constitutional validity of laws, enforcement  
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of its orders, control over its own process, and its residual jurisdiction as a  
court of original general jurisdiction.  
[Emphasis added.]  
[45] In addition to those previously recognized aspects of core jurisdiction, the  
Court in the Article 35 Reference emphasized that if the superior courts are to have  
the unifying effect that motivates s. 96, they must maintain a significant role in the  
development of the private law:  
[83]  
In our view, the superior courts’ core jurisdiction presupposes a broad  
subject‑matter jurisdiction whose scope corresponds, at the very least, to the  
central divisions of private law to which more specific fields of law are often  
attached. This can be explained by the superior courts’ historical origins and  
their nature as courts of original general jurisdiction, as well as by the  
principles of national unity and of the rule of law that underpin s. 96.  
[84]  
Historically, the English royal courts had general civil jurisdiction and  
were responsible for the major developments in private law. The Canadian  
superior courts, which are descended from those courts, inherited their role of  
prime importance in the judicial system. At the time of Confederation, they  
had jurisdiction over all important civil cases.  
[85]  
The paramount role given to the superior courts derives in part from  
the fact that they are courts of original general jurisdiction. A court of original  
general jurisdiction is the antithesis of a specialized tribunal. A specialized  
tribunal draws legal conclusions based on a limited number of principles and  
rules falling within its area of expertise, whereas a court of original general  
jurisdiction considers and interprets many principles and general rules that  
may apply in a number of fields of law. In giving the superior courts this  
breadth of perspective, the framers of the Constitution intended them to  
ensure the maintenance and coherent development of an actual order of  
positive laws, as well as to ensure stability and predictability in private law  
relationships. If the legislatures were free to diminish, by means of unlimited  
transfers of jurisdiction, the superior courts’ ability to lay down the broad lines  
of the case law, it would no longer be possible for these courts to perform  
their constitutional role as the primary guardians of the rule of law.  
[86]  
This is why a general jurisdiction over private law matters must be  
accompanied by a subject‑matter jurisdiction that is broad enough to  
preserve the superior courts’ role in providing jurisprudential guidance on  
private law. In our view, this requires significant — though not necessarily  
predominant — involvement in the resolution of disputes falling under the  
most fundamental branches of private law, such as property law, the law of  
succession and the law of obligations. A province may assign portions or  
offshoots of these fields to courts whose judges it appoints, within the  
restrictions of Residential Tenancies. But if, in so doing, it limits the superior  
court’s involvement significantly, then it “alters [that court’s] essence, making  
it something less than a superior court”. In short, a province which takes  
away an aspect of the court’s core jurisdiction contravenes s. 96 — a  
provision whose purpose lies in the “maintenance of the rule of law through  
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the protection of the judicial role”. In every case, the line that must not be  
crossed will be dependent upon a contextual and multi‑factored analysis.  
[Emphasis and internal citations removed.]  
[46] The Court then presented six non-exhaustive factors that were useful in that  
reference question:  
[88]  
… In this case, six factors are of particular relevance: the scope of the  
jurisdiction being granted, whether the grant is exclusive or concurrent, the  
monetary limits to which it is subject, whether there are mechanisms for  
appealing decisions rendered in the exercise of the jurisdiction, the impact on  
the caseload of the superior court of general jurisdiction, and whether there is  
an important societal objective. This list is not exhaustive. Other factors may  
be relevant in different contexts: one need only think, for example, of  
geographical limitations. However, in the circumstances of this case and in  
light of the evidence before us, we are of the view that the question can be  
decided on the basis of these six factors.  
[Emphasis added.]  
[47] I will dwell for a moment on the relationship between the Residential  
Tenancies test and the core-jurisdiction test and the significance of the historical  
analysis in the Article 35 Reference. The majority found that “there was a general  
shared involvement in the area of jurisdiction at issue: three of the four founding  
provinces’ inferior courts had, at the time of Confederation, sufficient practical  
involvement in matters relating to contractual and extracontractual obligations”:  
Article 35 Reference at para. 76. The significance of this finding is at issue in this  
appeal—the appellants saying that it dictates the outcome of the historical analysis  
here; the respondents saying that it is still open to this Court to find that the  
impugned jurisdiction was dominated by superior courts at Confederation.  
[48] A broad grant of jurisdiction—such as that in the Article 35 Reference —  
essentially bypasses the entire Residential Tenancies test and is left to be  
scrutinized solely through the multi-factor core-jurisdiction test. But this is not a free  
pass. The breadth of the granted jurisdiction will be considered in the core-  
jurisdiction analysis, where a broad scope weighs against the constitutionality of the  
grant.  
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[49] Nonetheless, the Supreme Court of Canada has recognized something of a  
paradox in the historical-analysis step of the Residential Tenancies test. The broader  
the impugned grant of jurisdiction, the more readily available a finding of  
concurrency (Sobeys at 253):  
… the broader the characterization the more likely it will be that at least some  
aspects of the jurisdiction will have been within the purview of inferior courts  
at Confederation.  
[50] The impugned jurisdiction at issue in the Article 35 Reference was a  
wholesale transfer of jurisdiction over “contractual and extracontractual obligations”:  
Article 35 Reference at para. 3. The Court said that the “expansive characterization  
required by the provision at issue inappropriately favours a finding of general shared  
involvement” (emphasis added): Article 35 Reference at para. 78. This is a  
“functional gap” in the Residential Tenancies test. The historical analysis “cannot  
readily be applied to a court-to-court transfer of a vast area of jurisdiction”: Article 35  
Reference at para. 77. Thus, despite a finding of concurrency for the jurisdiction of  
“contractual and extracontractual obligations,” I read the Article 35 Reference to say  
that this concurrency finding is an anomaly that does not dictate the outcome of a  
historical analysis for smaller subsets of jurisdiction, to which the historical analysis  
can be readily applied. The alternative would result in our jurisprudence depending  
on a caprice of history: the sequence in which s. 96 challenges arrive at the courts.  
[51] Again, the paradox we are accepting is the one accepted in Sobeys: the  
broader the grant, the more available a finding of concurrency. This calls for caution  
before treating higher courts’ concurrency findings as binding on a new question  
about a narrower grant.  
IV. The Parties and Procedural History  
[52] When the impugned provisions came into force, on 1 April 2019, the Trial  
Lawyers Association of British Columbia filed a notice of civil claim alleging that the  
cap on non-pecuniary damages flowing from minor injuries infringed s. 15 of the  
Charter and that ss. 16.1 and 133 of the CRTA violate s. 96 of the Constitution Act,  
1867. The notice of civil claim was amended on 2 March 2020 to name the Attorney  
 
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General as defendant and to include the additional individual plaintiffs and  
defendants.  
[53] The plaintiff Trial Lawyers Association of British Columbia is an organization  
of over 1,500 legal professionals in the province, many of whom are lawyers who  
frequently represent individuals who have suffered injuries as a result of motor  
vehicle accidents. The additional plaintiffs are individuals who suffered minor injuries  
in motor vehicle accidents after 1 April 2019 and who have commenced actions  
seeking to have their claims adjudicated in the Supreme Court (the “MVA plaintiffs”).  
The additional defendants (the “MVA defendants”) are defendants in proceedings  
brought by the MVA plaintiffs.  
[54] On 28 April 2020, the plaintiffs applied for summary judgment or trial  
(pursuant to Supreme Court Civil Rules 9-6(5) or 9-7(2)) to resolve only that part of  
their claim relating to the s. 96 challenge to ss. 16.1 and 133 of the CRTA. The judge  
was satisfied that this portion of the claim could be decided by summary judgment  
and/or trial as necessary.  
[55] The judge declared ss. 133(1)(b) and (c) (determination of whether an injury  
is a minor injury and determination of liability and damages) unconstitutional and of  
no force or effect. He also declared that s. 16.1 (requiring the Supreme Court to  
dismiss or stay certain proceedings) unconstitutional insofar as it applies to accident  
claims, with the exception of the determination of accident benefits under  
s. 133(1)(a). He declined to grant any independent order with respect to the Accident  
Claims Regulation (of which s. 7 sets the tribunal limit amount to $50,000).  
V. The Chambers Judgment  
[56] The summary proceedings were before Chief Justice Hinkson of the Supreme  
Court of British Columbia. The judgment was delivered on 2 March 2021, with  
reasons indexed as Trial Lawyers Association of British Columbia v. British  
Columbia (Attorney General), 2021 BCSC 348 [Summary Reasons]. Unless  
otherwise specified, citations in this section are to the Summary Reasons.  
 
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[57] The judge first set out the legislative background, the context of the litigation,  
and the legal tests as presented above. He did not have the benefit of the reasons of  
the Supreme Court of Canada from the Article 35 Reference that revised the core-  
jurisdiction analysis and provided a methodology for updating 1867 pecuniary limits  
to present-day values.  
[58] As part of the context, the judge noted a concern unique to grants of  
jurisdiction to tribunals rather than to inferior courts. Inferior courts, while not s. 96  
courts, are protected by the constitutional guarantees of individual and institutional  
independence: see P.E.I. Reference. In contrast, administrative tribunals do not  
benefit from this protection: see e.g., Ocean Port Hotel Ltd. v. British Columbia  
(General Manager, Liquor Control and Licensing Branch), 2001 SCC 52.  
[59] At paragraphs 103–105, the judge recognized that novelty may render a grant  
of jurisdiction permissible. “If a power is new, there can be no conflict with s. 96”:  
Reference re Amendments to the Residential Tenancies Act (N.S.), [1996] 1 S.C.R.  
186 at 243, 131 D.L.R. (4th) 609 [Residential Tenancies 1996]. And even “[a]  
jurisdiction historically exercised by the superior courts may also cease to be  
analogous if its current manifestation is animated by a distinctly different  
organizational or operational principle or philosophy”: Residential Tenancies 1996 at  
244. But codification of common law does not make the jurisdiction novel. “Covering  
an existing body of law with a new statutory wrapper dose not make it novel”:  
Residential Tenancies 1996 at 248.  
A. Characterization  
[60] The judge accepted the plaintiffs’ position that the jurisdiction at issue is  
properly characterized as “personal injury claims in tort”: para. 126. He found this  
sufficiently narrow as directed by Sobeys; it is appropriately focused on the type of  
dispute that the CRT would adjudicate under the impugned jurisdiction.  
 
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B. Residential Tenancies Step One – The Historical Analysis  
[61] The judge rejected the submission that the grant of jurisdiction was novel.  
The Attorney General’s novelty argument was based on a narrower characterization  
of the jurisdiction: “non-fatal personal injury claims in tort that arise out of road  
accidents”: para. 122. This argument was foreclosed by the judge rejecting that  
characterization. But the Attorney General also argued that even personal injury  
claims generally, in relation to unintentional torts, were essentially non-existent at  
Confederation and that the categorization of injuries as minor injuries (a statutory  
construct) is also novel.  
[62] The judge did not find the dearth of personal injury claims prior to  
Confederation to be best considered in the assessment of novelty. He was of the  
view that “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”: at para. 136. This is not a “distinctly different  
organizational principle or operational philosophy” and the legislation has not  
introduced a “comprehensive regime of new rights and entitlements”: para. 137.  
[63] Proceeding to the exclusivity analysis, the judge summarized the evidence of  
Professor Donald Fyson as it related to the historic jurisdiction of the courts in the  
confederating colonies. Professor Fyson reported on the jurisdictional division  
between inferior and superior courts in Upper Canada, Lower Canada, New  
Brunswick, and Nova Scotia leading up to Confederation by reference to statutes  
and other legislative instruments. He also reported on the frequency of personal  
injury claims, with support from case reports, court records, and newspapers. Given  
the principle that “questions of domestic law are not matters upon which a court will  
receive expert evidence,” the judge treated the evidence regarding statutorily  
allocated jurisdiction purely as an “aide-mémoire” that helpfully summarized the  
statutes that were also presented in the plaintiffs’ submissions: para. 181. The judge  
did not rely on any of Professor Fyson’s ultimate conclusions on the issue of whether  
the superior courts had been allocated exclusive jurisdiction over personal injury in  
tort.  
 
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[64] In Nova Scotia, the judge found that jurisdiction to hear personal injury claims  
was in the superior courts and not concurrent with the inferior courts at  
Confederation. Justices of the peace had jurisdiction over debt actions, but not over  
damages: para. 161. A geographically-limited Halifax City Court had jurisdiction over  
personal injury suits up to $40: para. 162.  
[65] In New Brunswick, the judge found that the superior courts and inferior courts  
did not share concurrent jurisdiction over personal injury claims at Confederation.  
Prior to 17 June 1867, there existed Inferior Courts of Common Pleas, with  
concurrent jurisdiction over “all actions except those involving title to lands”:  
para. 165. However, on 17 June 1867, these courts were abolished and replaced by  
County Courts (superior courts). Justices of the peace in New Brunswick had limited  
tort jurisdiction over property, but not personal injury: para. 168.  
[66] In Lower Canada, the judge found that jurisdiction over personal injury claims  
was exclusively in superior courts (the Superior Court and Circuit Court, both “s. 96  
predecessor courts”) at Confederation. One point of contention was the relevance of  
the Code of Civil Procedure of Lower Canada (CCPLC), which came into force 28  
June 1867. It purported to reproduce the pre-existing consolidated statutes, not  
changing the jurisdiction of the Commissioners’ Courts (inferior courts). Article 1188  
of the CCPLC declared that the jurisdiction of Commissioners’ Courts was limited to  
matters arising from contract or quasi-contract. Professor Fyson was of the opinion  
that the codifiers should not be trusted to have accurately codified the pre-existing  
law. The Attorney General, arguing for a finding of concurrency, noted that nothing in  
the pre-Confederation consolidated statutes indicates that the jurisdiction of the  
Commissioners’ Courts was limited to “contract or quasi-contract.” The judge  
accepted however that the codifiers did the job they were instructed to do and that  
they said they did: codifying only existing law; declaring what the Legislature  
considered “already to be the law at the time of the judicature compromises”:  
para. 212.  
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[67] In Upper Canada, inferior courts (geographically limited, but province-wide,  
Division Courts) exercised concurrent jurisdiction over personal injury claims.  
[68] There was disagreement as to the relevance of the exact date of  
Confederation when assessing exclusivity or concurrency of jurisdiction between  
inferior and superior courts, especially in New Brunswick. The Attorney General  
argued that McLachlin J. disregarded the 17 June transfer of jurisdiction to the  
County Courts in Residential Tenancies 1996 and that that approach is binding in  
this case. The plaintiffs say that approach is only binding with respect to tenancy  
matters. To accept that the general jurisdiction of the inferior courts as of 16 June  
1867 is sufficient to find concurrency would make New Brunswick meaningless  
under the Residential Tenancies test: para. 200. The judge agreed with the plaintiffs:  
[201] … In my view this was no caprice of history, but rather a deliberate  
decision to vest jurisdiction in what was about to become a s. 96 court, and  
place it there for the purpose of the interpretation and application of  
ss. 92(14) and 96 of the Constitution Act, 1867.  
[69] The judge concluded that in three of the four provinces at Confederation  
(Nova Scotia, New Brunswick, and Lower Canada), jurisdiction over personal injury  
claims was exclusively vested in the superior courts: see paras. 231, 258–59.  
[70] The plaintiffs also made an argument that the $50,000 tribunal limit amount is  
out of step with any concurrent jurisdiction of the inferior courts’ civil jurisdiction at  
Confederation: see para. 233. While the $50,000 tribunal limit amount is set in the  
Accident Claims Regulation and the plaintiffs did not specifically challenge that  
regulation in their pleadings, the judge recognized that the plaintiffs’ challenge “is to  
the legislative scheme” and he was willing to “consider the scheme in its entirety”  
including the “validity of the Accident Claims Regulation”: para. 240. However,  
because the plaintiffs failed to establish through evidence how to compare the  
monetary limits at Confederation to present-day values, and the methodology  
announced in the Article 35 Reference was unavailable, the judge could not find that  
the $50,000 limit was inconsistent with the monetary limits at Confederation. This did  
not affect the result, given the judge’s conclusion that jurisdiction over personal  
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injury claims was dominated by the superior courts in three of the four confederating  
provinces at Confederation: see para. 254.  
C. Residential Tenancies Step Two – A Judicial Function?  
[71] The plaintiffs then needed to show that the tribunal is now exercising this  
jurisdiction in a judicial capacity. This question is focused on the nature of the  
questions that come to the tribunal. See Residential Tenancies at 735:  
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’.  
[72] Notwithstanding the various procedural steps leading up to adjudication—and  
with the aim of avoiding adjudication—the judge found that when the CRT makes  
decisions under ss. 133(1)(b) and (c) regarding the liability and damages to which a  
party is entitled, it exercises a judicial function: see para. 291.  
D. Residential Tenancies Step Three – The Institutional Setting  
[73] Finally, the judge considered the two questions at step three of the  
Residential Tenancies test. The first is whether the judicial power is necessarily  
incidental to the achievement of the Legislature’s broader policy goals: see  
paras. 295–375. The second is whether the judicial power is subsidiary or ancillary  
to the tribunal’s administrative functions: see paras. 295, 376–391. He concluded  
that neither of these considerations validate the impugned grant of jurisdiction.  
[74] The Attorney General submitted that the impugned grant of jurisdiction  
furthered two policy objectives: “(1) facilitating proportionate access to justice for  
lower-value, high-volume MVA claims; and (2) preserving a sustainable and  
affordable automobile insurance system for British Columbians that strikes a balance  
between increased care for accident victims and more affordable and fair insurance  
rates”: para. 298. The plaintiffs argued that the means (the alternative forum) cannot  
be the policy goal itself and that this is what the province’s position amounts to. The  
plaintiffs say that this branch of the Residential Tenancies test must be about  
substantive—not procedural—law reform.  
   
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[75] For the Attorney General, the impugned scheme is part of an overarching  
move away from litigation-based approach to MVAs and that the CRT provides a  
forum uniquely suited to facilitate access to justice and to administer the new  
benefits-focused model. The CRT offers accessibility, high throughput, and lower  
cost. The motivation for these reforms was the 2017 report by Ernst & Young that  
forecasted skyrocketing automobile insurance premiums and suggested a variety of  
modifications to maintain the viability and affordability of ICBC insurance: see Ernst  
& Young, “ICBC: Affordable and Effective Auto Insurance—A New Road Forward in  
British Columbia” (10 July 2017), Appeal Book 1530 [EY Report]; see also  
discussion above at paras. 13–23. These options included a cap on non-pecuniary  
damages, greatly increasing accident benefits, introducing an “alternative dispute  
resolution service, which could be compulsory for both parties,” and a cap on  
disbursements for minor injuries: see EY Report at 119, Appeal Book at 1648.  
[76] The Attorney General submitted that the access-to-justice crisis, high-volume  
MVA litigation, and the findings of the EY Report establish a changed social  
circumstance that justifies the legislative policy objectives. The judge accepted that  
access to justice can be furthered in non-court venues: paras. 314–15. But the judge  
noted that despite the high number of MVA actions being initiated, only about 200  
per year, or 40 out of 10,000, claims resolve by trial. The MVA defendants say that  
this demonstrates not much practical jurisdiction would be lost by moving these  
claims to the CRT. The judge said these figures could cut the other way:  
demonstration that the current system is doing well at minimizing the number of  
cases that go to trial.  
[77] The Attorney General relied on the evidence of two experts—Professors Paul  
Daly and Richard Susskind—in support of the position that the impugned scheme is  
a legitimate response to changed social circumstances. The judge summarized  
Professor Daly’s evidence as presenting the government’s increased reliance on  
administrative tribunals with a focus on “economical, efficient and effective decision-  
making”: para. 333. Professor Daly presented the CRT as an example of such a  
tribunal. Professor Daly’s opinion was that even though reforms may redirect claims  
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to a new forum, this change in the procedural mechanism is itself reflective of  
“legislative value judgments”—“the medium is the message”: para. 334. Professor  
Susskind extoled the reputation and benefits of the CRT. It is “the world’s most  
advanced and best-known operational, fully-functional, public-sector ODR service”:  
para. 338. It provides “greater access to justice, lower cost service, the speedier  
disposal of legal problems, a more understandable service, a more convenient  
service, and a less combative service”: para. 339.  
[78] The judge was critical of both expert opinions because they did not address  
the constitutionality of the tribunals but instead merely focused on their purported  
benefits. He was specifically critical of Professor Susskind’s evidence to the extent  
that it relied on low-response-rate, self-selected survey data. The judge did not think  
there was enough of a track record of MVAs at the CRT that could support Professor  
Susskind’s conclusion that the CRT has demonstrated utility or that it will be lower  
cost.  
[79] The judge accepted the plaintiff’s position that the creation of an alternative  
forum cannot in itself be the policy goal that validates a grant of jurisdiction. Such an  
argument would allow validation of any transfer of jurisdiction to an alternative forum:  
see para. 362.  
[80] While the Attorney General presented the impugned provisions as part of and  
necessary to a broader package of changes, the judge concluded that there was no  
“meaningful explanation of the actual interrelationship between the impugned grant  
and the substantive content of the scheme”: para. 374.  
[81] Regarding the second path to validating the grant—that the judicial function  
might be ancillary or subsidiary to the tribunal’s administrative functions—the judge  
was of the view that it is circular to describe adjudication of disputes as subsidiary to  
the resolution of disputes. The other off-ramps and case-management processes  
here are not like the comprehensive labour-relations regimes that have validated  
other judicial functions in Labour Relations Board of Saskatchewan v. John East Iron  
Works, Ltd. (1948), [1949] A.C. 134, [1948] 4 D.L.R. 673 (P.C.) and Tomko.  
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E. Section 16.1 of the CRTA  
[82] Given the unconstitutionality of ss. 133(1)(b) and (c), the judge saw that  
s. 16.1 is “left with no application or meaning in relation to accident claims, except  
for accident benefits under s. 133(1)(a)”: para. 402. He found that there was no need  
to consider the arguments that it independently infringed s. 96 on access-to-justice  
grounds.  
F. Remedy  
[83] The plaintiffs conceded, and the judge accepted, that s. 133(1)(a) (which  
gives the CRT jurisdiction to determine entitlement to statutory benefits) is  
constitutional and severable from the rest of s. 133(1). He declared ss. 133(1)(b) and  
(c) unconstitutional and of no force or effect. He also declared that s. 16.1 (requiring  
the Supreme Court to dismiss or stay matters within the jurisdiction of the CRT)  
should be read down to not apply to accident claims, except for determination of  
entitlement to statutory benefits under s. 133(1)(a).  
VI. Alleged Errors and Argument  
[84] The appellants’ essential position on appeal can be summarized as follows:  
a) the judge erred by characterizing the granted jurisdiction too broadly and  
then failed to find that the granted jurisdiction was novel; or  
b) even as characterized by the judge, he erred by failing to find that the  
granted jurisdiction is analogous to a jurisdiction over which there was  
general shared involvement or meaningful concurrency between the  
inferior and superior courts at Confederation; and  
c) the impugned jurisdiction does not offend the core-jurisdiction test.  
A. Step One of Residential Tenancies  
[85] The appellants argue that the judge erred by characterizing the jurisdiction  
too broadly, an error they say permeated the entire analysis. The appellant Attorney  
General says an appropriate characterization would be “jurisdiction to adjudicate  
       
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modestly valued civil claims arising from injurious motor vehicle accidents” and  
“interpretation of ‘minor injury’ for the purposes of determining whether a statutory  
limit on non-pecuniary damages applies and what the default forum for  
determination of liability and damages is” (formatting removed): Factum of the  
Appellant (Attorney General) at paras. 34, 64. The MVA defendants similarly  
propose, “classification and resolution of small causes in tort related to minor bodily  
injury and associated property damage resulting from the use or operation of a  
motor vehicle”: Factum of the Appellants (MVA defendants) at para. 39. The  
Attorney General acknowledges, however, that any reference to a monetary limit  
(i.e., “modestly valued”) is now off the table given the clear direction from the  
Supreme Court of Canada in the Article 35 Reference. The MVA defendants also  
acknowledge this, but say that the reference to “small causes” in their proposed  
characterization is a reference to the qualitative nature of the dispute rather than a  
reference to a monetary limit.  
[86] Regarding novelty, the Attorney General argues the judge did not recognize  
that tort law relating to MVAs is not comparable to anything confronted by courts in  
1867. These are not merely factually new circumstances; it is substantively new law,  
especially when considered in the context of prevailing insurance regimes that  
operate as a form of social contract.  
[87] On novelty, the Trial Lawyers Association argues that there is nothing novel  
about the CRT’s “power to decide liability and damages in relation to unintentional  
injuries caused by another”; this is “precisely the sort of work superior courts have  
traditionally done”: Factum of the Respondent at para. 102. This should not be  
affected by a new mode of injury (vehicles), the frequency of the injuries, or the  
surrounding insurance regime: Factum of the Respondent at para. 108.  
[88] The Attorney General and MVA defendants say that if the judge was incorrect  
about either the abolishment of the Inferior Courts of Common Pleas (“ICCP”s) in  
New Brunswick or about the jurisdiction of the Commissioners’ Courts in Lower  
Canada, then his conclusion on concurrency as a whole is incorrect. This is because  
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the plaintiffs did not lead any evidence regarding the jurisdiction of the courts in the  
United Kingdom at Confederation: Summary Reasons at para. 95. Thus, the  
plaintiffs must establish that the jurisdiction over personal injury in tort was  
dominated by superior courts in at least three of the four confederating provinces. A  
two-to-two tie would not be enough for the plaintiffs to meet their burden.  
[89] The Attorney General argues that the judge’s treatment of the transfer of the  
ICCP jurisdiction on 17 June 1867 is not consistent with the direction from McLachlin  
J. in Residential Tenancies 1996, where she rejected a strict 1 July 1867 cut-off and  
said that “pre-confederation jurisdiction should be more generally evaluated”:  
Residential Tenancies 1996 at para. 83. Regarding the jurisdiction of the  
Commissioners’ Courts in Lower Canada, the MVA defendants say the judge erred  
in concluding that the Commissioners’ Courts did not have jurisdiction over personal  
injury claims. They point to statutes pre-dating art. 1188 of the CCLPC that they say  
provided the Commissioners’ Courts with jurisdiction over personal injury claims  
under $25. They say that art. 1188 was not declaratory of pre-existing law and that it  
was an error for the judge to rely on it as if it were.  
[90] The Trial Lawyers Association defends the conclusion below regarding  
concurrency on two bases: (1) the judge did not err in his treatment of the removals  
of jurisdiction near to Confederation; and (2) the current-day $50,000 monetary  
scope is too large to support a finding of concurrency in Upper Canada, Lower  
Canada, or Nova Scotia.  
[91] The Trial Lawyers Association acknowledges that McLachlin J. directed  
courts to not “fix obdurately on the exact date of Confederation”: Factum of the  
Respondent at para. 132, citing Residential Tenancies 1996. Removal of jurisdiction  
from inferior courts in the lead-up to Confederation does not necessarily preclude a  
finding of concurrency. But they say that for a court to find concurrency for the  
purpose of the Residential Tenancies test, the court must find that the inferior courts  
in fact exercised such jurisdiction. The Trial Lawyers Association says the relative  
dearth of personal-injury claims at Confederation precludes a finding of concurrency.  
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[92] As for the treatment of art. 1188 in Lower Canada, the Trial Lawyers  
Association argues that it was declaratory of the law as it existed prior to June 1867:  
the Commissioners’ Courts’ jurisdiction was always limited to small causes in  
contract or quasi-contract.  
[93] The Trial Lawyers Association further invites this Court to incorporate a  
comparison of monetary limits as part of the concurrency analysis. Doing so, they  
say, would preclude a finding of concurrency in any of the provinces because the  
upper limit of $40 only translates to at most $26,403 today.  
[94] Little argument was directed exclusively at step two of the Residential  
Tenancies test (whether the granted jurisdiction is being exercised in the context of a  
judicial function), with much of the argument on this point blending into the step-  
three question.  
B. Step Three of Residential Tenancies  
[95] The appellants argue that the judge misunderstood the purpose of the  
evidence from Professors Daly and Susskind. He largely discarded their opinions as  
“irrelevant”: Summary Reasons at paras. 335, 355. The judge was looking for the  
evidence of Professors Daly and Susskind to “address the requirement that for such  
tribunals to exist in the first place, they must meet the Residential Tenancies test”:  
Summary Reasons at para. 336. But the appellants say that this is circular. The  
professors’ evidence was part of the argument going to establish that the granted  
jurisdiction meets the Residential Tenancies test; specifically, their evidence is  
relevant for step three. The evidence goes to establishing the rational basis that the  
grant of jurisdiction to the CRT is necessarily incidental to broader policy goals. And  
Professor Daly’s evidence attempted to explain how procedural goals can be the  
end-policy goal.  
[96] The appellants also say the judge held them to an improperly high threshold  
of proof at this step, effectively requiring them to demonstrate efficacy of the CRT,  
rather than merely a rational basis for treating the grant of jurisdiction as necessarily  
incidental to their policy goal.  
 
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[97] The asserted policy goal is access to justice. The MVA defendants say the  
legislature sought to achieve this through public-sector online dispute resolution with  
a “fundamentally different philosophy” than that of courts. The appellants point to the  
Article 35 Reference as establishing that access to justice is a valid policy goal that  
can validate a grant of jurisdiction (although in the Article 35 Reference, this was  
discussed in the context of the core-jurisdiction test, and the grant was to an inferior  
court).  
[98] The respondent Trial Lawyers Association says the judge did not require the  
defendants to demonstrate efficacy; rather, he correctly found that the defendants  
did not demonstrate a “sufficient connection” between the granted jurisdiction and a  
broader policy goal of restructuring insurance benefits. And they argue that in any  
case, access to justice cannot be the policy goal that supports a grant of jurisdiction  
to an administrative tribunal: the language from the Article 35 Reference is  
applicable only as far as inferior courts.  
C. Core Jurisdiction  
[99] The appellants argue that if the grant of jurisdiction passes the Residential  
Tenancies test and thus falls to be assessed under the core-jurisdiction test, it  
should be found constitutional. They say the multi-factor analysis weighs in favour of  
constitutionality because of (1) the limited scope of jurisdiction granted, (2) there is  
still robust involvement of the Supreme Court, (3) the $50,000 monetary limit is  
below the “updated historical ceiling” from the Article 35 Reference (which would be  
between $63,698 and $66,008 today, starting from a $100 limit at the time of  
Confederation), (4) there is judicial review as of right, which includes correctness  
review on questions of law, (5) the evidence is that the actual trial load of the  
Supreme Court is minimally affected by this transfer and the Supreme Court retains  
the opportunity to hear qualitatively important cases, and (6) the scheme is in pursuit  
of an important societal objective: access to justice.  
[100] The Trial Lawyers Association says the grant would be invalid under the core-  
jurisdiction analysis. They argue (1) this is a broad scope: the full range of  
 
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negligence principles will be adjudicated at the CRT, (2) if the Supreme Court  
determines it should not take jurisdiction, it must transfer the case to the CRT, and  
the Supreme Court has no way of “calling up” cases that are filed directly at the CRT  
(3) that if $40 is taken as the starting point, rather than $100, the $50,000 monetary  
limit is “nearly double” the modern day equivalent, although acknowledging this is  
not determinative, (4) that protecting the tribunal’s findings of fact by the patent  
unreasonableness standard on judicial review “denude[s] the court of its power to  
meaningfully perform its superintending function on judicial review in relation to  
factual matters,” (5) that the impact on the Supreme Court caseload should not be  
based only on the matters that go to trial, but rather, how many cases are filed, and  
(6) the impugned provisions deny rather than enhance access to justice.  
[101] The Trial Lawyers Association submits two additional factors that they say  
further indicate that the core jurisdiction of the superior courts has been invaded.  
First, unlike an inferior court, the CRT does not have a constitutional guarantee of  
judicial independence. Second, the litigation in this field is effectively against the  
Insurance Corporation of British Columbia, an agent of the Crown. A provincially  
constituted administrative tribunal adjudicating disputes between private individuals  
and another provincial agent weighs against constitutionality of the grant of  
jurisdiction because oversight of the exercise of public powers is an element of the  
superior courts’ core jurisdiction.  
VII. Analysis  
[102] The judge’s analysis below can be briefly summarized.  
[103] First, he characterized the grant of jurisdiction under the new legislative  
scheme as one encompassing “personal injury claims in tort.” Next, he proceeded to  
apply the Residential Tenancies test, finding that the jurisdiction so characterized  
was exclusively exercised by the superior courts in three of the four confederating  
provinces at the relevant time, namely, Nova Scotia, New Brunswick and Lower  
Canada.  
 
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[104] Advancing to step two of the test, the judge concluded that the grant of  
jurisdiction was indeed exercised in the judicial capacity and that at step three of the  
test, the jurisdiction was not subsidiary or ancillary to an administrative function nor  
necessarily incidental to the achievement of a broader policy goal of the legislature.  
[105] Having arrived at those conclusions, the judge did not need to consider the  
“core jurisdiction” test.  
A. Historical Considerations  
[106] In my view the judge erred in finding exclusivity (or dominance) in superior  
courts over the granted jurisdiction at or around the date of Confederation in respect  
to at least New Brunswick and he erred in his analysis at step three of the  
Residential Tenancies test in any event.  
[107] The matter was heard primarily below on the basis of Rule 9-6(5) of the  
Supreme Court Rules. The judge did have limited resort to Rule 9-7(2) and some  
factual findings with respect to the historical analysis: see Summary Reasons at  
paras. 180, 223–31. Those findings of fact are not in dispute on appeal, only their  
significance to the constitutional question as a matter of law.  
[108] These considerations together with the fact that the judge did not have the  
benefit of the “core jurisdiction” test as refined by the court in the Article 35  
Reference calls for a de novo analysis of the constitutionality of the impugned grant  
of jurisdiction.  
[109] I begin with the Residential Tenancies test. To repeat, the burden is on the  
party—here the Trial Lawyers Association—impugning the validity of the grant of  
jurisdiction. After characterizing the jurisdiction, there are three questions:  
(1)  
Does the transferred jurisdiction conform to a jurisdiction that  
was dominated by superior, district or county courts at the time  
of Confederation?  
(2)  
(3)  
If so, was the jurisdiction in question exercised in the context  
of a judicial function?  
If the first two questions are answered in the affirmative, is the  
jurisdiction either subsidiary or ancillary to an administrative  
 
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function or necessarily incidental to the achievement of a  
broader policy goal of the legislature?  
[110] In my view the judge was correct to omit reference to the size of claim or the  
mode of injury in his characterization of the grant of jurisdiction. However, it may be  
more accurate to have characterized the jurisdiction as one involving “personal injury  
claims, including related property damage claims, in tort.” Whether we include the  
reference to related property damage claims does not materially change our analysis  
of step one of the Residential Tenancies test. Including reference to the related  
property damage claims slightly broadens the characterization, making a finding of  
concurrency even more readily available. While Professor Fyson was not asked to  
report on jurisdiction over property damage claims, his report—and more important,  
statutes from the time—indicates that inferior courts also had jurisdiction over  
damages to moveable, and sometimes real, property.  
[111] This characterization is in keeping with the guidance provided in Sobeys and  
other cases. And it avoids the inevitable inclination to include the monetary  
jurisdiction as a descriptive aspect of the characterization, as the suggestions of the  
appellants are contrary to the direction in the Article 35 Reference.  
[112] If one accretes every possible limiting modifier to a grant of jurisdiction,  
almost any grant can be characterized with such specificity that it would not broadly  
conform to jurisdiction exercised by any court at Confederation. The characterization  
must remain focused on the “type of dispute involved”: Residential Tenancies 1996  
at para. 76; Article 35 Reference at para. 74.  
[113] Additional modifiers to include “motor vehicle accidents” as the subject matter  
would be superficial at this stage, in that the substantive law applicable to personal  
injury claims involving MVAs is not any different from the law applicable to personal  
injury claims arising from other modes of injury. Such a narrowing would be akin to  
the kind of narrowing that a monetary limit would provide: narrowing only the number  
of cases captured by the characterization, but not a substantive narrowing of the  
type of dispute being captured.  
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[114] In light of this characterization of the jurisdiction, I also conclude that the  
judge was correct not to accept it as “novel” and not exercised by courts generally in  
and about 1867.  
[115] I also accept the judge’s conclusion with respect to the historical situation in  
Upper Canada and Nova Scotia in 1867.  
[116] Where the judge erred in my view was with respect to New Brunswick. One  
must conclude that during the essential time period around the date of  
Confederation there was concurrency in the exercise of the impugned jurisdiction in  
the superior and inferior courts of New Brunswick.  
[117] In my view, one is driven to this conclusion by Justice McLachlin’s judgment  
in Residential Tenancies 1996 and both the majority and dissents in the Article 35  
Reference.  
[118] Dealing first with Residential Tenancies 1996, there the issue was the  
constitutionality of a grant of jurisdiction by Nova Scotia in residential tenancy  
matters to the Director of Residential Tenancies and the Residential Tenancies  
Board.  
[119] Justice McLachlin (as she then was) for a five-member majority said this of  
the date to be used in the exercise (at para. 79):  
A fourth observation concerns the date at which the powers of the pre-s.  
96 courts are to be determined. Are we to fix obdurately on the exact date of  
Confederation? If an inferior tribunal enjoyed concurrency for many years  
only to have it removed days before Confederation, should that removal  
necessarily preclude finding concurrency? Or should a more flexible  
approach be taken, one which examines the "general historical conditions"  
prevailing in the confederating provinces? (Sobeys, at p. 265.) The purpose  
of the test for a transfer of s. 96 powers suggests that the latter approach is  
preferable. If the inferior courts did in fact exercise the jurisdiction in question  
reasonably contemporaneously with Confederation, there is no basis for  
concern that the present day derogation of those powers from the superior  
courts fails to accord with the unifying intent of the judicature compromises.  
The historical inquiry mandated by the first step of the test should be realistic  
and not arbitrarily swayed by the caprice of history. Results should not turn  
on technicalities such as the date a particular bill came into force. The  
concern is to ascertain whether the type of dispute at issue is broadly  
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conformable to one which fell to be decided exclusively or predominantly by  
the superior courts at or about the time of Confederation. In Sobeys this  
Court indicated that the relevant date of assessment was the time when the  
“bargain was made”. Wilson J. referred to “jurisdiction in 1867" or “1867  
jurisdiction”, but nowhere stipulated for one particular moment in time. La  
Forest J., also writing in Sobeys, cautioned against an overly mechanical  
application of the historical test in dealing with jurisdiction that is not  
amenable to precise definition (at pp. 288-89):  
If one must pick a specific date to govern the inquiry, 1867 would  
seem to be appropriate, but even here I am not sure one should be so  
much concerned with precise dates as with avoiding incorporating into  
s. 96 court jurisdiction matters that may be specific to a province by  
reason of a situation peculiar to the province at the time. For what we  
are seeking after all is a generalized and workable meaning for the  
jurisdiction exercisable by s. 96 courts. …  
[Emphasis added; emphasis from original removed.]  
[120] In respect of New Brunswick, this led Justice McLachlin to, in effect, discount  
the fact that shortly before the actual date of Confederation, the jurisdiction of the  
Inferior Courts of Common Pleas was curtailed. The judge continued:  
The appellant contends that picking an arbitrary point in time in order to  
decide the outcome of the analysis in the first stage of the Residential  
Tenancies test places too much emphasis on historical happenstance, and  
that pre-confederation jurisdiction should be more generally evaluated. It  
follows from what I have said earlier that I accept that position. The lesson  
of Sobeys is that the goal is to find a “generalized and workable meaning for  
the jurisdiction exercisable by s. 96 courts” (pp. 288-89). Until 14 days before  
Confederation, a wide range of residential tenancy disputes were decided by  
the Court of Common Pleas. This was the situation at the time when the  
judicature provisions were being codified by the Fathers of Confederation,  
and it follows from the foregoing that in my view the test has been met in  
relation to New Brunswick.  
[121] In my view, in the face of this reasoning, Chief Justice Hinkson’s conclusion in  
this case at para. 201 of the summary reasons cannot be sustained. He reasoned:  
… Active legislative steps were taken to establish specific and exclusive  
jurisdiction in the New Brunswick Superior Court preparatory to  
Confederation. In my view this was no caprice of history, but rather a  
deliberate decision to vest jurisdiction in what was about to become a s. 96  
court, and place it there for the purpose of the interpretation and application  
of ss. 92(14) and 96 of the Constitution Act, 1867.  
[122] The judgments in the Article 35 Reference buttress the conclusion that the  
Chief Justice erred.  
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[123] In its historical analysis the majority there referred to the limited involvement  
of inferior courts in Lower Canada in matters relating to contractual and  
extracontractual obligations (which would include claims in tort) (para. 76). However:  
… In all the other provinces, however, inferior courts played a predominant  
role in the administration of civil justice. They had broad jurisdiction and  
heard between 80 percent (in Upper Canada and Nova Scotia) and 90  
percent (in New Brunswick) of all civil cases (pp. 183, 192 and 198). In most  
of the provinces, therefore, there was sufficient practical involvement of the  
inferior courts in matters relating to contractual and extracontractual  
obligations.  
[124] In Chief Justice Wagner’s dissent, he noted of New Brunswick (para. 223):  
In New Brunswick, the City Court of Saint John could hear civil disputes up to  
$80 (p. 137) and, until 1867, the Court of Common Pleas exercised  
jurisdiction concurrently with the New Brunswick Supreme Court in civil  
matters, without any monetary limits except in cases involving title to land  
(pp. 131-33).  
[125] I note that the point made by Chief Justice Hinkson concerning the repeal  
shortly before 1 July 1867 of the jurisdiction enjoyed by the Inferior Courts of  
Common Pleas did not preclude Chief Justice Wagner from making his finding of  
concurrency in New Brunswick. The reasons of Abella J. are to similar effect.  
[126] All of this is to say that the thrust of guiding authority does not see the  
legislative changes to the jurisdiction of the inferior court in New Brunswick, on the  
very eve of Confederation, as affecting the concurrency analysis in respect of that  
province.  
[127] I note that Chief Justice Hinkson was also concerned that finding concurrency  
in New Brunswick would be “incompatible with Wilson J.’s refusal to find  
concurrency in New Brunswick in Sobeys Stores”: at para. 200, citing Sobeys at  
268. In Sobeys, Wilson J. characterized the inferior court jurisdiction in New  
Brunswick as follows (at 268):  
Jurisdiction over small debts, some unpaid wages, and seamen’s contracts  
were all given to inferior courts, but for the reasons noted above none of this  
can be equated to a general jurisdiction over unjust dismissal: see Of  
Regulations for Seamen, R.S.N.B. 1854, c. 86, s. 10; Of Regulations for  
Shipping Seamen at the Port of Saint John, R.S.N.B. 1854, c. 87, s. 9; Of the  
Jurisdiction of Justices in Civil Suits, R.S.N.B. 1854, c. 137, s. 1.  
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[128] That indeed is more limited than the jurisdiction which was exercised by the  
Inferior Courts of Common Pleas. However, in support of that conclusion, Wilson J.  
cites some chapters in the revised statutes of New Brunswick from 1854. It is  
apparent from the First Report of the Commissioners, found in the introduction to the  
revised statutes, that the chapter relied upon in Sobeys entitled “Of the Jurisdiction  
of Justices in Civil Suits” was intended to be understood as “Of the jurisdiction of  
Justices of the Peace in civil suits” (emphasis added): R.S.N.B. 1854 at xi. The  
Commissioners also reported that “the third part [of the revised statutes], relating to  
Courts of Law, must necessarily be limited in extent, although whatever we  
conceived might not probably require revision has been inserted”: R.S.N.B. 1854  
at x. The Commissioners who compiled the 1854 revision did not include a chapter  
reflecting the jurisdiction of the Inferior Courts of Common Pleas set out in An Act to  
consolidate and amend the Laws to provide for the administration of Justice in the  
Inferior Courts of Common Pleas and General Sessions of the Peace, S.N.B. 1850  
(13 Vict.), c. 47 [1850 ICCP Act].  
[129] I say that to explain why the Court in Sobeys viewed the jurisdiction of inferior  
courts in New Brunswick to be so limited at confederation. They appear to have  
relied upon an incomplete description of the inferior courts’ jurisdiction. Neither the  
judgment of the Supreme Court of Canada nor the judgment of the Appeal Division  
of the Nova Scotia Supreme Court in Sobeys referred to the 1850 ICCP Act which  
provided the broad jurisdiction granted to the Inferior Courts of Common Pleas. This  
leaves open the alternative finding here just as it was open to the Supreme Court of  
Canada in the Article 35 Reference. In the end, a finding of concurrency would not  
have changed the result in Sobeys, given that the Court upheld the grant of  
jurisdiction at step three of the Residential Tenancies test.  
[130] With a finding of concurrency in Upper Canada, this leads at least to a 2-2  
“tie.” As the Trial Lawyers Association did not lead evidence of the situation in the  
United Kingdom in 1867 to “break the tie” (see Sobeys at 271) they have not met  
their burden and the grant of jurisdiction survives an application of the Residential  
Tenancies test. This means I need not review the judge’s decision in concluding that  
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there was exclusivity in Lower Canada notwithstanding the historical debate in that  
regard.  
[131] This brings us to an application of the “core jurisdiction” test as refined by the  
majority in the Article 35 Reference. Recall there are multiple purposes for this  
second test. One is that for broad grants of jurisdiction, such as in the Article 35  
Reference, the Residential Tenancies test cannot be readily applied: see Article 35  
Reference at para. 77; see also discussion above at para. 50. Another is that “even  
if no parallel court is created, the superior courts could be impaired to such an extent  
that they can no longer play their constitutional role”: Article 35 Reference at  
para. 63.  
B. Core Jurisdiction Test  
[132] Before embarking on the test, it is helpful to sketch out the scheme in  
operation. Here I trace the path that a claim would follow for maximal involvement of  
Supreme Court in a suit for liability and damages resulting from a hypothetical minor  
injury (the statutory category) caused by a motor vehicle accident.  
[133] The plaintiff will file a notice of civil claim at the Supreme Court. While it would  
be open to the plaintiff to initiate a proceeding at the CRT instead, the incentive for a  
plaintiff seeking a damages award above the tribunal limit amount or having the  
matter decided by the Supreme Court is for them to initiate the proceeding at the  
Supreme Court. Indeed, this is consistent with the posture of the parties in this  
litigation.  
[134] The defendant will allege that the proceeding relates to a minor injury. This  
triggers s. 16.1(2)(a) of the CRTA, which requires the Supreme Court to stay the  
proceeding until the CRT determines whether the injury is in fact a minor injury.  
[135] The tribunal will determine that the injury is a minor injury. This triggers a  
presumption under s. 135 of the CRTA that the amount that will be awarded is less  
than or equal to the tribunal limit amount “unless a party establishes on the basis of  
 
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satisfactory evidence that there is a substantial likelihood that the damages will  
exceed the tribunal limit amount.”  
[136] The defendant will then ask the Supreme Court for a stay pursuant to  
s. 16.1(2)(b). This requires the Supreme Court to stay proceedings until the tribunal  
determines whether the plaintiff establishes that there is a “substantial likelihood that  
damages will exceed the tribunal limit amount,” “unless it is not in the interests of  
justice and fairness for the tribunal to make the determination.”  
[137] If the Supreme Court agrees that it is not in the interests of justice and  
fairness for the CRT to adjudicate the presumption rebuttal, it can retain jurisdiction  
to adjudicate the presumption rebuttal. This is either a necessary corollary of  
s. 16.1(2)(b) which provides that the Supreme Court need not order the stay, or it  
could result from an order under 16.2(1)(b) that the tribunal “not adjudicate a claim” if  
“it is not in the interests of justice and fairness for the tribunal to adjudicate the  
claim.”  
[138] If the presumption that damages are within the tribunal limit amount is  
rebutted, then the tribunal must cede jurisdiction and the Supreme Court can  
assume jurisdiction over adjudication of liability and damages: CRTA, ss. 11(1)(e),  
16.4(1)(b)(ii).  
[139] If the presumption is not rebutted, the tribunal is deemed to have “specialized  
expertise” “in respect of claims described in [s. 133(1)(c)]”: CRTA, s. 133(2)(b). The  
Supreme Court is generally required to dismiss the proceeding at that point: CRTA,  
s. 16.1(b).  
[140] However, the plaintiff could still allege that it is not in the interests of fairness  
and justice for the CRT to adjudicate the liability and damages: CRTA, s. 16.1(1)(b).  
If the Supreme Court agrees, then it is not required to dismiss the claim. It could  
instead order the tribunal to not adjudicate the claim and assume jurisdiction over  
the claim: CRTA, ss. 16.2(1)(b), 16.4(1)(c).  
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[141] In the path just described, there are three decisions potentially made by the  
tribunal:  
a) the determination of whether the injury is a minor injury;  
b) the determination of whether the presumption that the damages are within  
the tribunal limit amount has been rebutted (the presumption rebuttal); and  
c) the ultimate adjudication of the liability and damages to be awarded.  
[142] On judicial review, these decisions attract different degrees of scrutiny. This is  
because of the different levels of exclusivity and/or expertise that the tribunal is  
deemed to have over these matters: see CRTA, s. 133(2). The tribunal has  
exclusive jurisdiction over the determination of whether the injury is a minor injury.  
The tribunal has specialized expertise “in respect of claims described in subsection  
(1)(c) of this section.”  
[143] I read the “specialized expertise in respect of claims described in subsection  
(1)(c)” to include the determination of whether the presumption has been rebutted.  
See e.g., Nowegijick v. The Queen, [1983] 1 S.C.R. 29 at 39 (interpreting the phrase  
in respect of to have the “widest possible scope”).  
[144] I will summarize below the standards of review applicable to these decisions  
but I now return to the test.  
[145] Recall that the majority in the Article 35 Reference stressed the need for  
superior courts to enjoy a significant role in the development of the private law. The  
jurisdiction of the superior courts over private law matters “must be accompanied by  
a subject matter jurisdiction that is broad enough to preserve the superior courts’  
role in providing jurisprudential guidance in private law”: at para. 86. While the  
provinces may assign a portion of private law fields to courts it appoints (and I add,  
to tribunals), those provinces must not alter the superior court’s essence “making it  
something less than a superior court”: para. 86, quoting MacMillan Bloedel at  
para. 1.  
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[146] The majority then provided a non-exclusive list of six factors that help  
determine whether a provincial scheme crosses the prohibited “line”:  
(i)  
the scope of the jurisdiction being granted;  
whether the grant is exclusive or concurrent;  
the monetary limits to which it is subject;  
(ii)  
(iii)  
(iv)  
whether there are mechanisms for appealing decisions  
rendered in the exercise of the jurisdiction;  
(v)  
the impact on the caseload of the superior court of general  
jurisdiction;  
(vi)  
whether there is an important societal objective (in the grant of  
jurisdiction).  
(vi) 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.  
 
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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.  
[151] A review of Tomko and Sobeys reveals the standard to which the government  
has been held (albeit in the context of step three of the Residential Tenancies test).  
The government has not been required to demonstrate efficacy of the granted  
jurisdiction in achieving the broader policy objective to which it might be necessarily  
incidental. Rather, there need only be a rational basis to believe the granted  
jurisdiction is necessarily incidental.  
[152] In Tomko, the Nova Scotia Labour Relations Board was given the power to  
issue orders to cease and desist illegal work stoppages, including lockouts and  
strikes. The majority (with reasons from Laskin C.J.), held that this power to issue  
cease-and-desist orders did not offend s. 96. The power was “thought necessary to  
enable the administrative agency to deal with illegal strikes or lockouts by exercising  
a remedial authority to induce or compel a settlement of the dispute which led to the  
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unlawful activity or peremptorily to bring that activity to an end by an interim cease  
and desist order” (emphasis added): at 124–125. And at 122:  
… The policy considerations are evident, and in pursuit thereof the  
mechanism of a cease and desist order to restore the lawful status quo ante  
seems to me to be a rational way of dealing administratively with a rupture of  
peaceful labour relations.  
[Emphasis added.]  
[153] To the same effect is Sobeys (at 278–81).  
[154] This notion has been repeated in the Article 35 Reference:  
[126] … it is not enough to allege that there is an important societal  
objective; it is also necessary to show that the objective is real and that there  
is a connection between the grant of jurisdiction to a court with provincially  
appointed judges and the achievement of the objective. …  
[155] These decisions are not dependent upon inquiries into efficacy. The Court  
has looked for a legislative goal and some rational relation between that goal and  
the granting of the impugned jurisdiction to the tribunal.  
[156] Here, the required connection has been demonstrated.  
[157] There are certainly multiple overlapping motivations that led the legislative  
branch to enact the impugned scheme, including the goal of keeping ICBC  
premiums in line with inflation. But, while cost reduction may have been part of the  
legislative motivation, it is important that the CRT has not been directed to reduce  
ICBC’s costs. See CRTA, s. 2:  
2 …  
(2) The mandate of the tribunal is to provide dispute resolution services in  
relation to matters that are within its authority, in a manner that  
(a) is accessible, speedy, economical, informal and flexible,  
(b) applies principles of law and fairness, and recognizes any  
relationships between parties to a dispute that will likely continue  
after the tribunal proceeding is concluded,  
(c) uses electronic communication tools to facilitate resolution of  
disputes brought to the tribunal, and  
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(d) accommodates, so far as the tribunal considers reasonably  
practicable, the diversity of circumstances of the persons using the  
services of the tribunal.  
(3) In fulfilling its mandate, the role of the tribunal is  
(a) to encourage the resolution of disputes by agreement between the  
parties, and  
(b) if resolution by agreement is not reached, to resolve the dispute by  
deciding the claims brought to the tribunal by the parties.  
(4) In addition to its responsibilities in relation to disputes brought to the  
tribunal for resolution, the tribunal may  
(a) provide the public with information on dispute resolution processes  
generally, and  
(b) make its online dispute resolution services available to the public  
generally.  
[158] In his Summary Reasons the judge noted the plaintiffs’ argument that the  
CRT’s judicial powers are not necessarily incidental to the achievement of its motor  
vehicle insurance related objectives, including those pertaining to road safety,  
premiums and benefits: para. 373. The judge concluded (at para. 374):  
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.  
[159] But the EY Report, as I have summarized it, simply belies this assertion, and  
it clearly ties the creation of an alternative dispute resolution forum to the suite of  
reforms it advances.  
[160] I digress to discuss in slightly more detail the breadth of the scheme created  
by the relevant legislative provisions.  
[161] As described above, a determination by the CRT that an injury is a minor  
injury has two downstream effects: (1) a cap on non-pecuniary damages (see IVA  
s. 103; Minor Injury Regulation, s. 6); and (2) a presumption that the amount that will  
be awarded for a minor injury is less than or equal to the tribunal limit amount (see  
CRTA, s. 135).  
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[162] While those are the effects most relevant for understanding the technical  
nature of the jurisdiction that has been assigned to the CRT, other aspects of the  
minor-injury scheme are relevant for understanding the context in which the CRT is  
exercising this jurisdiction. The Minor Injury Regulation sets out a diagnosis, referral,  
and treatment regime that applies when a physician believes their patient may have  
suffered a minor injury. This regime is not contingent on a CRT determination. It also  
does not apply to accidents occurring on or after 1 May 2021.  
[163] For example, subsection 10(1) of the Minor Injury Regulation provides:  
10 …  
(1) A physician whose patient may have suffered a minor injury in an  
accident must consider, no later than 90 days after the date of the  
accident that caused the injury, referring the patient to a registered  
care advisor if one or more of the following circumstances apply:  
(a) the physician is unable to make a clear diagnosis;  
(b) the patient is not recovering from the injury as expected by  
the physician;  
(c) there are factors complicating the patient’s recovery from the  
injury.  
[164] The regulation also provides for the establishment of a registry of registered  
care providers who are “knowledgeable in evidence-informed practice with specific  
competencies in the assessment and treatment of (i) musculoskeletal injuries, (ii)  
acute and chronic pain, or (iii) mental health issues and other psychosocial issues”  
(formatting removed): Minor Injury Regulation, s. 8.  
[165] This diagnosis and treatment scheme intersects with the CRT’s jurisdiction  
where a claimant fails to seek a diagnosis or fails to comply with the diagnostic and  
treatment protocol and what was initially a minor injury develops into a non-minor  
injury. In such a circumstance, the injury is deemed to be a minor injury: IVA,  
ss. 101(2)–(3).  
[166] It will be seen that the legislative reforms generally create a regime for the  
identification, and management of, and compensation for, “minor injuries” suffered in  
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motor vehicle accidents in B.C.—a “cradle to grave” approach to addressing this  
aspect of personal injury in our province.  
[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.  
[168] I interject to say that if I am wrong on the step-one analysis under the  
Residential Tenancies test, then these considerations just discussed above will lead  
ineluctably to a conclusion that the impugned jurisdiction is necessarily incidental to  
the achievement of a broader goal of the legislature. Accordingly, the scheme would  
be saved at step three of the Residential Tenancies test.  
[169] I return to the core jurisdiction test and the remaining factors.  
(i) Scope of Jurisdiction  
[170] The jurisdiction centers on “minor injuries” suffered in motor vehicle accidents  
in British Columbia. It is not an insignificant scope of jurisdiction but it is discreet.  
“Minor injury” is defined in the applicable legislation (IVA, s. 101):  
"minor injury" means a physical or mental injury, whether or not chronic,  
that  
(a)  
(b)  
subject to subsection (2), does not result in a serious  
impairment or a permanent serious disfigurement of the  
claimant, and  
is one of the following:  
(i)  
an abrasion, a contusion, a laceration, a sprain or a  
strain;  
(ii)  
a pain syndrome;  
(iii)  
(iv)  
a psychological or psychiatric condition;  
a prescribed injury or an injury in a prescribed type or  
class of injury;  
[171] It is a jurisdiction directed at injuries that presumptively, but not irretrievably  
so, are limited to $50,000 in total compensation at this time, a sum not appreciably  
greater than the current jurisdiction of the Small Claims Court in British Columbia.  
 
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[172] Clearly a broad and important field of tort claims and the compensatory  
regime in respect thereof is left to the superior courts in British Columbia. The law of  
negligence and compensation for damages suffered thereby will continue to be  
developed in the superior courts and will guide the CRT in the exercise of its  
jurisdiction under the impugned scheme.  
[173] In my view this factor favours the scheme.  
(ii) Concurrency or Exclusivity of the Grant  
[174] In respect of many claims coming within the “minor injury” category, the grant  
of jurisdiction will, practically, be exclusive. But there is a “safety valve” in favour of  
the Supreme Court of British Columbia where, as described, that court determines it  
is not in the interests of justice and fairness for the tribunal to make the  
determination. This allows the Supreme Court to retain jurisdiction over the rebuttal  
of the monetary presumption and to retain jurisdiction over the ultimate  
determination of liability and damages.  
[175] In my view, a consideration of this factor does not favour a conclusion  
invalidating the impugned scheme.  
(iii) The Monetary Limits  
[176] Following the methodology used in the Article 35 Reference, at $50,000 the  
tribunal limit is comparable to the modern-day equivalent of the jurisdiction which at  
least some of the inferior courts enjoyed at Confederation ($100) and it is not  
dramatically higher than that of others. And that comparative exercise does not even  
consider the monetarily unlimited jurisdiction of the Inferior Courts of Common Pleas  
in New Brunswick. In my view, a consideration of this factor does not favour  
invalidating the scheme.  
(iv) Appeal Mechanisms  
[177] There is no right of appeal in the traditional sense from decisions of the CRT  
although judicial review is available in the circumstances I have indicated.  
     
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[178] My summary of the applicable standards of review is set out in this table.  
Again, I note that strictly speaking only the scheme as of 1 April 2019 is before the  
court:  
TABLE 1: Standards of review on judicial review of CRT decisions.  
1 April 2019  
Questions of fact Patent unreasonableness Patent unreasonableness  
categorization or law  
28 October 2021  
Minor injury  
Presumption  
rebuttal  
Questions of fact Correctness*  
Questions of law Correctness  
Questions of fact Reasonableness†  
Questions of law Correctness  
Questions of fact Correctness*  
Questions of law Correctness  
Reasonableness†  
Correctness  
Liability  
Reasonableness†  
Correctness  
Reasonableness†  
Damages  
Correctness  
*
Due to the ATA, s. 58(2)(c) “loophole” which resulted in correctness review for questions of fact  
for matters decided in respect of s. 133(1)(c), other than liability; described above at para. 35.  
†
“Reasonableness” here being shorthand for the statutory language: a court must not set aside  
a finding of fact unless “[t]here is no evidence to support [the finding], or… in light of all the  
evidence, the finding is otherwise unreasonable”. See CRTA, s. 56.8 (as of 28 October 2021);  
ATA, s. 59(2).  
Note: There are of course other standards of review for discretionary decisions and for applications  
of the common law rules of natural justice and procedural fairness. The above is intended to show  
the parallel with the appellate standard of review on questions of liability and damages.  
[179] In my view, this is a sufficiently robust appellate review regime. A  
consideration of this factor does not favour invalidating the scheme.  
(v) Impact on Supreme Court’s Caseload  
[180] There is no doubt that a very significant number of “minor injury” motor  
vehicle accident claims are filed each year in the Supreme Court—some 24,546 in  
the year 2019. Still, only a very small percentage, approximately 200, actually go to  
trial in that court in an average year. I do not agree with the appellants that this latter  
number is the relevant number under this factor but I do not see the jurisdiction  
granted to the CRT by the scheme dramatically reducing the caseload of the  
Supreme Court either in simple numbers or in the breadth of remedies sought before  
it. This is not the wholesale transfer of an exceedingly broad jurisdiction as was the  
 
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case in the Article 35 Reference. To be colloquial, the scheme here will not result in  
any “layoffs” in the Supreme Court. It will continue to have a very robust role in the  
development of the law in this area as contemplated by the objectives underlying  
s. 96.  
VIII. Disposition  
[181] In brief compass, a review and weighing of the non-exhaustive list of factors  
relevant in the test leads me to conclude that the core jurisdiction of the Supreme  
Court of British Columbia remains in place even in the face of the new scheme. Its  
“essence” as a superior court of general jurisdiction remains. I would allow the  
appeal and strike out the declarations below.  
[182] The respondents also cross-appeal, asking for an order declaring s. 7 of the  
Accident Claims Regulation (which sets the tribunal limit amount to $50,000) to be  
unconstitutional and of no force or effect. They acknowledge that this issue need not  
be addressed as long as this Court considers their arguments about the monetary  
limit as going to the constitutionality of the CRT’s jurisdiction over MVA claims. In  
these reasons, I have considered the entire implementing scheme, including s. 7 of  
the Accident Claims Regulation, in concluding that the grant of jurisdiction is  
constitutional. I would dismiss the cross-appeal.  
“The Honourable Chief Justice Bauman”  
I agree:  
“The Honourable Mr. Justice Butler”  
 
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Reasons for Judgment of the Honourable Madam Justice Bennett:  
[183] I have had the opportunity to read Chief Justice Bauman’s draft reasons for  
judgment. I agree that Chief Justice Hinkson erred in his application of the  
Residential Tenancies test. However, I do not agree with Bauman C.J.B.C.’s  
conclusion that the core jurisdiction of the court has not been impermissibly  
infringed. In my view, the transfer of the jurisdiction at issue to the CRT has dealt a  
deep blow to the jurisdiction of the superior court.  
[184] Chief Justice Bauman has set out the background of the appeal and the law,  
which I will not repeat except where it is necessary for my analysis.  
I. Residential Tenancies Test  
[185] I agree with Hinkson C.J.S.C., that what is being examined is properly  
characterized as personal injury claims in tort. Chief Justice Bauman expanded that  
definition to include related property damage. I would not expand the definition in  
that manner, but I do not see it makes a difference in the analysis.  
[186] I agree with Bauman C.J.B.C that Hinkson C.J.S.C. erred at the first step of  
the Residential Tenancies test when he concluded that personal injury in tort was in  
the exclusive jurisdiction of the superior courts in New Brunswick.  
[187] Chief Justice Hinkson concluded that when New Brunswick abolished the  
Inferior Courts of Common Pleas shortly before Confederation on July 1, 1867, that  
left no inferior court in that province exercising jurisdiction over personal injury  
claims in New Brunswick. He concluded that the comments of McLachlin J. (as she  
then was) in Residential Tenancies 1996 did not preclude a finding that the intent of  
the legislature in New Brunswick was “a deliberate decision to vest jurisdiction in  
what was about to become a s. 96 court” (Summary Reasons at para. 201). I have  
some sympathy for the conclusion reached by Hinkson C.J.S.C., as the normal rules  
of statutory interpretation might lead one to the conclusion that, by amending the  
legislation in advance of a known significant event, the legislature intended to  
   
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establish certain matters in the s. 96 courts. However, that is not what McLachlin J.  
concluded in Residential Tenancies 1996. She found, at paras. 79 and 83:  
[79]  
A fourth observation concerns the date at which the powers of the  
pre-s. 96 courts are to be determined. Are we to fix obdurately on the exact  
date of Confederation? If an inferior tribunal enjoyed concurrency for many  
years only to have it removed days before Confederation, should that  
removal necessarily preclude finding concurrency? Or should a more flexible  
approach be taken, one which examines the “general historical conditions”  
prevailing in the confederating provinces? (Sobeys, at p. 265.) The purpose  
of the test for a transfer of s. 96 powers suggests that the latter approach is  
preferable. If the inferior courts did in fact exercise the jurisdiction in question  
reasonably contemporaneously with Confederation, there is no basis for  
concern that the present day derogation of those powers from the superior  
courts fails to accord with the unifying intent of the judicature compromises.  
The historical inquiry mandated by the first step of the test should be realistic  
and not arbitrarily swayed by the caprice of history. Results should not turn  
on technicalities such as the date a particular bill came into force. The  
concern is to ascertain whether the type of dispute at issue is broadly  
conformable to one which fell to be decided exclusively or predominantly by  
the superior courts at or about the time of Confederation. In Sobeys this  
Court indicated that the relevant date of assessment was the time when the  
“bargain was made”. Wilson J. referred to “jurisdiction in 1867” or “1867  
jurisdiction”, but nowhere stipulated for one particular moment in time.  
La Forest J., also writing in Sobeys, cautioned against an overly mechanical  
application of the historical test in dealing with jurisdiction that is not  
amenable to precise definition (at pp. 288-89):  
If one must pick a specific date to govern the inquiry, 1867 would  
seem to be appropriate, but even here I am not sure one should be so  
much concerned with precise dates as with avoiding incorporating into  
s. 96 court jurisdiction matters that may be specific to a province by  
reason of a situation peculiar to the province at the time. For what we  
are seeking after all is a generalized and workable meaning for the  
jurisdiction exercisable by s. 96 courts. [Emphasis added by  
McLachlin J.]  
…
[83]  
The appellant contends that picking an arbitrary point in time in order  
to decide the outcome of the analysis in the first stage of the Residential  
Tenancies test places too much emphasis on historical happenstance, and  
that pre-confederation jurisdiction should be more generally evaluated. It  
follows from what I have said earlier that I accept that position. The lesson of  
Sobeys is that the goal is to find a “generalized and workable meaning for the  
jurisdiction exercisable by s. 96 courts” (pp. 288-89). Until 14 days before  
Confederation, a wide range of residential tenancy disputes were decided by  
the Court of Common Pleas. This was the situation at the time when the  
judicature provisions were being codified by the Fathers of Confederation,  
and it follows from the foregoing that in my view the test has been met in  
relation to New Brunswick.  
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[188] That conclusion appears to have been applied in the Article 35 Reference at  
para. 76, where the majority found that inferior courts in New Brunswick, at the time  
of Confederation, heard 90 percent of all civil cases.  
[189] The respondents submit that the observations of McLachlin J. should be  
construed narrowly, and limited to tenancies. In my view, McLachlin J.’s conclusion  
is an interpretation that is binding authority on this Court, and it has not been  
distinguished by the respondents.  
[190] I also agree with Bauman C.J.B.C.’s reasons that Hinkson C.J.S.C. was  
correct in concluding that the jurisdiction exercised by the CRT is not novel.  
[191] As a result, in my view, the order of Hinkson C.J.S.C. cannot stand on the  
basis that he found. Chief Justice Hinkson did not address the issue of core  
jurisdiction. Normally, I would remit the case to the Chief Justice to consider the core  
jurisdiction test. However, this Court is in as good a position to decide the core  
jurisdiction issue. It was fully argued; the parties sought a ruling in this Court; and  
the evidence was in the form of affidavits. It is in the core jurisdiction analysis that I  
part company with Bauman C.J.B.C.  
II. The Core Jurisdiction  
[192] The core jurisdiction test, first introduced in MacMillan Bloedel, is described in  
the Article 35 Reference as follows:  
[65]  
To preserve the essence of the superior courts, this Court therefore  
added a second test to the analysis of constitutionality under s. 96. It held  
that when the core jurisdiction of superior courts is affected, courts must ask  
whether the legislation has the effect of removing any of the attributes of the  
superior courts’ core jurisdiction (MacMillan Bloedel, at paras. 18 and 27).  
Core jurisdiction includes “critically important jurisdictions which are essential  
to the existence of a superior court of inherent jurisdiction and to the  
preservation of its foundational role within our legal system” (Reference re  
Residential Tenancies Act (N.S.), at para. 56, per Lamer C.J., concurring).  
These defining features enable a superior court “to fulfil itself as a court of  
law” (MacMillan Bloedel, at paras. 30, 35 and 38 (emphasis deleted), quoting  
I. H. Jacob, “The Inherent Jurisdiction of the Court” (1970), 23 Current Legal  
Problems 23, at p. 27). Their “inherent” nature is attributable to the fact that  
they are derived not from legislation, but “from the very nature of the court as  
 
Trial Lawyers Association of British Columbia v.  
British Columbia (Attorney General)  
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a superior court of law” (para. 30, quoting Jacob, at p. 27). If such an attribute  
is removed, the measure is unconstitutional.  
[66]  
In addition to calling a removal of jurisdiction into question, this new  
doctrine operates to prevent the creation of parallel courts, like the  
Residential Tenancies test also does. The core jurisdiction test prevents the  
legislature from transferring to other courts the features that are essential to  
the role of the superior courts as the centrepiece of the unitary justice system  
and the primary guardians of the rule of law, for such transfers could  
transform those other courts into mirrors of the superior courts. The  
prohibition against parallel courts and the protection of the superior courts’  
core jurisdiction are thus closely related; the creation of parallel courts affects  
the superior courts’ essential functions and place in the judicial system,  
thereby undermining or usurping their role and exceeding the limits imposed  
by s. 96. However, the core jurisdiction test does not merely place limits on  
what can be transferred to other courts. It also curbs impermissible  
interference by the legislature with the exercise of the jurisdiction and powers  
that constitute the very essence of the superior courts in order to prevent  
these courts from being “maim[ed]” (MacMillan Bloedel, at para. 37).  
[67]  
The emergence of a test protecting core jurisdiction thus marks a  
change in direction. Unlike the Residential Tenancies test, the core  
jurisdiction analysis is not primarily historical in nature. It is the very essence  
of the superior courts that is protected. The content of the core jurisdiction is  
therefore not limited to what the superior courts exercised exclusively at the  
time of Confederation. It extends to whatever is needed in order to preserve  
the vigour and strength of those courts. The protected powers and jurisdiction  
are solidly anchored in the role the superior courts are called upon to play in  
the maintenance of the rule of law in our unitary justice system (MacMillan  
Bloedel, at paras. 37-38 and 41).  
[193] As the majority explained in the Article 35 Reference at para. 71, one of the  
purposes underlying both the Residential Tenancies test and the core jurisdiction  
test is to prohibit the creation of parallel courts.  
[194] Having set out the test and its purpose, I return to the amendments in  
question. Prior to the amendments, the superior court and the provincial court  
shared jurisdiction over personal injury claims, with the cap of $35,000 in the  
provincial court. The provincial court did not have exclusive jurisdiction over claims  
under $35,000; however, there were cost consequences to a litigant who  
commenced their action in the superior court when the award was within the small  
claims court jurisdiction (Supreme Court Civil Rules, B.C. Reg. 169/2009,  
r. 14-1(10)).  
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[195] On the other hand, under the amendments to the CRTA, the CRT has  
exclusive jurisdiction for personal injury actions arising from motor vehicle claims  
under $50,000 and the CRT determines if the case falls within the jurisdiction:  
133  
(1) Except as otherwise provided in section 113 [restricted authority of  
tribunal] or in this Division, the tribunal has jurisdiction in a dispute, in  
respect of an accident, over a claim concerning one or more of the  
following:  
(a)  
(b)  
(c)  
the determination of entitlement to benefits paid or  
payable under the Insurance (Vehicle) Act;  
the determination of whether an injury is a minor injury  
for the purposes of the Insurance (Vehicle) Act;  
liability and damages, if the amount, including loss or  
damage to property related to the accident but  
excluding interest and any expenses referred to under  
section 49 [order for payment of expenses], is less than  
or equal to the tribunal limit amount.  
(2) For the purposes of this Act, the tribunal  
(a)  
has exclusive jurisdiction in respect of claims described  
in subsection (1) (a) or (b) of this section, and  
(b)  
is to be considered to have specialized expertise in  
respect of claims described in subsection (1) (c) of this  
section.  
(3) For certainty, a person may make a request for tribunal resolution  
in more than one tribunal proceeding relating to an accident.  
[196] Section 16.1 of the CRTA sets out the mandatory procedure the Supreme  
Court (or Provincial Court) must follow if the claim falls within the CRT jurisdiction:  
16.1 (1) Subject to subsection (2) and section 16.4 (1) and (2) [bringing or  
continuing claim in court], if, in a court proceeding, the court  
determines that all matters are within the jurisdiction of the tribunal, the  
court must,  
(a)  
in the case of a claim within the exclusive jurisdiction of  
the tribunal, dismiss the proceeding,  
(b)  
in the case of a claim in respect of which the tribunal is  
to be considered to have specialized expertise, dismiss  
the proceeding unless it is not in the interests of justice  
and fairness for the tribunal to adjudicate the claim, or  
(c)  
in any other case, stay or dismiss the proceeding, as  
the court considers appropriate, unless it is not in the  
interests of justice and fairness for the tribunal to  
adjudicate the claim.  
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(2) Subject to section 16.4 (1) and (2), if, in a court proceeding, a party  
alleges that a matter in a proceeding before the court relates to a minor  
injury within the jurisdiction of the tribunal under section 133 (1) (b)  
or (c) [claims within jurisdiction of tribunal for accident claims], the court  
must stay the proceeding until the tribunal determines, as applicable,  
(a)  
in the case of an accident claim under section  
133 (1) (b), whether an injury is a minor injury, and  
(b)  
in the case of an accident claim under section  
133 (1) (c), unless it is not in the interests of justice and  
fairness for the tribunal to make the determination,  
whether a party has established that there is a  
substantial likelihood that damages will exceed the  
tribunal limit amount.  
(3) For the purposes of subsection (2), “minor injury” and “tribunal limit  
amount” have the same meaning as in section 132 [definitions for  
Division – accident claims].  
16.2 (1) Subject to subsection (2), the court may order that the tribunal not  
adjudicate a claim that is or purports to be in one of the claim  
categories if  
(a)  
the tribunal does not have jurisdiction to adjudicate the  
claim, or  
(b)  
it is not in the interests of justice and fairness for the  
tribunal to adjudicate the claim.  
(2) Subsection (1) (b) does not apply if the tribunal has exclusive  
jurisdiction in respect of the claim.  
16.3 (1) For the purposes of sections 16.1 (1) and 16.2 (1), when deciding  
whether it is in the interests of justice and fairness for the tribunal to  
adjudicate a claim, the court may consider the following:  
(a)  
whether an issue raised by the claim or dispute is of  
such importance that the claim or dispute would benefit  
from being adjudicated by that court to establish a  
precedent;  
(b)  
(c)  
whether an issue raised by the claim or dispute relates  
to a constitutional question or the Human Rights Code;  
whether an issue raised by the claim or dispute is  
sufficiently complex to benefit from being adjudicated  
by that court;  
(d)  
whether all of the parties to the claim or dispute agree  
that the claim or dispute should not be adjudicated by  
the tribunal;  
(e)  
(f)  
whether the claim or dispute should be heard together  
with a claim or dispute currently before that court;  
whether the use of electronic communication tools in  
the adjudication process of the tribunal would be unfair  
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to a party in a way that cannot be accommodated by  
the tribunal.  
(2) For the purposes of section 16.1 (2), when deciding whether it is in  
the interests of justice and fairness for the tribunal to make the  
determination referred to in that subsection, the court may consider the  
principle of proportionality.  
[Emphasis added.]  
[197] A “minor injury” is defined in s. 101 of the IVA:  
“minor injury” means a physical or mental injury, whether or not chronic, that  
(a) subject to subsection (2), does not result in a serious impairment or a  
permanent serious disfigurement of the claimant, and  
(b) is one of the following:  
(i) an abrasion, a contusion, a laceration, a sprain or a strain;  
(ii) a pain syndrome;  
(iii) a psychological or psychiatric condition;  
(iv) a prescribed injury or an injury in a prescribed type or class of  
injury;  
[Emphasis added.]  
[198] The Minor Injury Regulation prescribes the following as minor injuries  
pursuant to s. 101(b)(iv) of the IVA:  
Prescribed injury for definition of “minor injury”  
2 The following injuries are prescribed injuries for the purposes of  
paragraph (b) (iv) of the definition of “minor injury” in section 101 (1) of the  
Act:  
(a) a concussion that does not result in an incapacity;  
(b) a TMJ disorder;  
(c) a WAD injury.  
[199] And in the definition section of the Minor Injury Regulation:  
“TMJ disorder” means an injury that involves or surrounds the  
temporomandibular joint;  
“WAD injury” means a whiplash associated disorder other than one that  
exhibits one or both of the following:  
(a) decreased or absent deep tendon reflexes, deep tendon weakness  
or sensory deficits, or other demonstrable and clinically relevant  
neurological symptoms;  
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(b) a fracture to or dislocation of the spine.  
[200] Thus, as explained below, the legislature has deemed a number of serious  
injuries as “minor injuries”. This includes a pain syndrome (IVA, s. 101(1)(b)(ii)),  
which is defined in the Minor Injury Regulation as including pain that is not resolved  
within three months. It also includes a psychological or psychiatric condition  
(s. 101(1)(b)(iii)), as long as it is resolved within 16 weeks or is not the primary  
reason that an individual substantially cannot perform the essential tasks of their  
employment, education or daily living. “Serious impairment” does not arise until an  
injury continues to not be resolved after a year (s. 101(1)). In short, living with years  
of pain or mental illness—as long as it is not the primary reason for one’s inability to  
work, study, or live—is still considered a “minor” injury. Even chronic injuries can be  
“minor injuries”, despite the observations in Nova Scotia (Workers’ Compensation  
Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, 2003 SCC  
54 at para. 1:  
Chronic pain syndrome and related medical conditions have emerged in  
recent years as one of the most difficult problems facing workers’  
compensation schemes in Canada and around the world. There is no  
authoritative definition of chronic pain. It is, however, generally considered to  
be pain that persists beyond the normal healing time for the underlying injury  
or is disproportionate to such injury, and whose existence is not supported by  
objective findings at the site of the injury under current medical techniques.  
Despite this lack of objective findings, there is no doubt that chronic  
pain patients are suffering and in distress, and that the disability they  
experience is real. While there is at this time no clear explanation for chronic  
pain, recent work on the nervous system suggests that it may result from  
pathological changes in the nervous mechanisms that result in pain  
continuing and non-painful stimuli being perceived as painful. These  
changes, it is believed, may be precipitated by peripheral events, such as an  
accident, but may persist well beyond the normal recovery time for the  
precipitating event. Despite this reality, since chronic pain sufferers are  
impaired by a condition that cannot be supported by objective findings, they  
have been subjected to persistent suspicions of malingering on the part of  
employers, compensation officials and even physicians. Ruth Laseur and  
Donald Martin are the appellants in this case. Both suffer from the disability  
of chronic pain.  
[201] At issue here are the grants in ss. 133(1)(b) and (c) of the CRTA. These  
provisions grant the CRT exclusive jurisdiction over “the determination of whether an  
injury is a minor injury for the purposes of the Insurance (Motor Vehicle) Act”  
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(s. 133(1)(b)). The tribunal is deemed to have specialized expertise over “liability and  
damages, if the amount, including the loss or damages to property related to the  
accident […] is less or equal to the tribunal limit amount” (s. 133(1)(c)).  
[202] The legislation grants the CRT exclusive jurisdiction over minor injury  
claims—and it is the CRT that decides whether a claim is one with respect to a  
minor injury in the first place. The court must stay a proceeding if a party alleges that  
the claim is with respect to a minor injury until the CRT decides whether the injury is,  
in fact, a “minor” one (CRTA, s. 16.1(2)(a)). The court may take jurisdiction on the  
question of liability and damages but the onus is on the party seeking to oust the  
tribunal’s jurisdiction to establish that there is a substantial likelihood that damages  
will exceed the $50,000 cap or that it is in the “interests of justice and fairness” to do  
so (CRTA, s. 16.1(2)(b)).  
[203] There is no issue that the development of the law in relation to personal injury  
generally lies with the superior courts, particularly in the law of negligence.  
Experience tells that most of the personal injury cases in the courts arise from  
automobile accidents.  
[204] As noted in the Article 35 Reference at para. 85:  
The paramount role given to the superior courts derives in part from the fact  
that they are courts of original general jurisdiction. A court of original general  
jurisdiction is the antithesis of a specialized tribunal. A specialized tribunal  
draws legal conclusions based on a limited number of principles and rules  
falling within its area of expertise, whereas a court of original general  
jurisdiction considers and interprets many principles and general rules that  
may apply in a number of fields of law. In giving the superior courts this  
breadth of perspective, the framers of the Constitution intended them to  
ensure the maintenance and coherent development of an actual order of  
positive laws, as well as to ensure stability and predictability in private law  
relationships (Reference re Manitoba Language Rights, at pp. 747-52;  
Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at para. 70; T.  
Bingham, The Rule of Law (2010), at pp. 38-39; Huppé, at p. 13). If the  
legislatures were free to diminish, by means of unlimited transfers of  
jurisdiction, the superior courts’ ability to lay down the broad lines of the case  
law, it would no longer be possible for these courts to perform their  
constitutional role as the primary guardians of the rule of law.  
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[205] The responsibility of the superior courts to develop the law stems from the  
key principles of maintaining national unity and upholding the rule of law (Article 35  
Reference at paras. 41–52).  
[206] And at para. 86 of the Article 35 Reference:  
This is why a general jurisdiction over private law matters must be  
accompanied by a subject-matter jurisdiction that is broad enough to  
preserve the superior courts’ role in providing jurisprudential guidance on  
private law (N. Lyon, “Is Amendment of Section 96 Really Necessary?”  
(1987), 36 U.N.B.L.J. 79, at pp. 83-84). In our view, this requires significant  
— though not necessarily predominant — involvement in the resolution of  
disputes falling under the most fundamental branches of private law, such as  
property law, the law of succession and the law of obligations. A province  
may assign portions or offshoots of these fields to courts whose judges it  
appoints, within the restrictions of Residential Tenancies. But if, in so doing, it  
limits the superior court’s involvement significantly, then it “alters [that court’s]  
essence, making it something less than a superior court” (MacMillan Bloedel,  
at para. 1). In short, a province which takes away an aspect of the court’s  
core jurisdiction contravenes s. 96 — a provision whose purpose lies in the  
“maintenance of the rule of law through the protection of the judicial role”  
(Reference re Remuneration of Judges (1997), at para. 88 (emphasis added);  
Trial Lawyers, at para. 39). In every case, the line that must not be crossed  
will be dependent upon a contextual and multi-factored analysis.  
[Emphasis in original.]  
[207] The question posed in the Article 35 Reference at para. 87 is:  
Does the grant of jurisdiction impact the superior court of general jurisdiction  
in such a way as to alter its essential nature or prevent it from playing its role  
under s. 96? If the jurisdiction-granting provisions transforms the provincial  
court [here, the CRT] into a parallel court prohibited by the Constitution, the  
answer to this question must be yes.  
[208] Before applying the factors set out in the Article 35 Reference, I acknowledge  
that the jurisdiction transferred in this case is less extensive than that transferred by  
the Quebec legislature in art. 35 of the Code of Civil Procedure. In that case there  
was a broader grant of jurisdiction, and for a higher monetary amount. The transfer  
was to another court, whereas here, the transfer is to a tribunal. However, the  
appellants acknowledge that the tribunal, once it is at the hearing stage, does  
perform its functions in a way analogous to a court.  
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[209] Here, the amendments grant the CRT exclusive jurisdiction in “minor”  
personal injury automobile cases with a value less that $50,000. Prior to the  
amendments, that jurisdiction resided concurrently with the provincial court up to  
$35,000 and exclusively with the superior court after $35,000.  
[210] The decision in the Article 35 Reference made it clear that the six factors  
utilized in that analysis were not exclusive. Chief Justice Bauman focussed on the  
six factors. In my view, there is an additional factor that has relevance to this case,  
and that is the issue of judicial independence. Chief Justice Bauman is of the view  
that that issue needs to be litigated in a different context. With respect, I disagree.  
A. Scope of the Jurisdiction  
[211] The first factor is the scope of the jurisdiction being granted. The scope is  
examined not just on a quantitative basis, but also on a qualitative basis, as set out  
in the Article 35 Reference at para. 97:  
The scope of the jurisdiction being granted is not a strictly quantitative factor  
linked to the number of disputes concerned. On the contrary, this factor  
requires that the jurisdiction in question be situated in relation to the main  
branches of private law. In determining whether the transfer is “vast” or  
“limited”, we must bear in mind the role of the superior courts of general  
jurisdiction, which, more than any other court, are responsible for ensuring  
the coherence of private law. If a provincial court is granted a large block of  
jurisdiction at the heart of private law — such as contract law or property law  
— that would suggest that that court is, in exercising the jurisdiction in  
question, acting as a prohibited parallel court and that the superior courts are  
impaired as a result. Whether such a grant is constitutional will then depend  
on the scope of the limits placed on it. In contrast, a grant of a limited  
jurisdiction — over matters with respect to lease, for example — will not  
weigh as heavily in favour of such a conclusion, since it is only a very specific  
branch and not the very centre of contract law.  
[212] Chief Justice Bauman focuses on the “minor injury” aspect of the legislation,  
and concludes that because the transfer is a discrete aspect of personal injury, and  
the amount is capped at $50,000, the legislation leaves a sufficient number of cases  
in the superior court to develop the law.  
[213] As noted above, in my view, when one closely examines the definition of  
“minor injury”, one finds that it is an expansive one that covers, amongst other  
 
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things, chronic pain, chronic psychological and psychiatric conditions, and  
concussion injuries short of incapacity.  
[214] In 2019, around 24,546 new actions relating to motor vehicle collisions were  
filed in the Supreme Court of British Columbia representing 30% of all new civil and  
family cases filed that year (Summary Reasons at para. 323). Between 2015 and  
2019, only 0.2% to 0.6% of the total claims that were ultimately resolved—either by  
settlement or judgment—actually went to trial (at para. 325). Over a five-year period,  
over 80% of accident claims were settled for $50,000 or less; of those claims for  
under $50,000, 15% were litigated; and less than 1% of those litigated claims were  
actually adjudicated in a trial (at para. 326).  
[215] While the proportion of cases that were actually resolved by trial is very small,  
the sheer number of cases commenced each year means that the CRT will take  
jurisdiction over a large number of cases that are currently decided, tried, and  
case-managed by the superior court.  
[216] I view the transfer of a significant part of the personal injury arising from  
automobile accidents—recall that 80% of cases settle for an amount within the  
tribunal’s jurisdiction—to the CRT as a serious transfer of the jurisdiction of the  
superior court. It deprives the court of a large number of opportunities to ascertain  
what amounts to negligence, resulting in liability, in a time when the law is in a  
period of change. New issues will be emerging and they will require the courts to  
establish legal parameters with respect to liability. For example, social host liability is  
still not entirely settled. In addition, the emergence of self-driving automobiles will  
present novel issues: who will be liable, the non-driver or the car manufacturer,  
perhaps the car dealership, and so on? These are matters on which the superior  
courts—not the CRT—need to opine. Such cases may well result in “minor” personal  
injury, but they still give rise to complicated and novel legal questions. While the  
court may take jurisdiction from the CRT because of the importance of the issue and  
the need for a precedent, this is a discretionary decision with the onus placed on the  
applicant and part of a cumbersome pre-trial process, as discussed further below.  
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[217] Thus, in my view, the broad scope of the jurisdiction transferred to the CRT  
weighs in favour of a finding that the CRT is an impermissible parallel court.  
B. Whether the Grant is Exclusive or Concurrent  
[218] The second factor is whether the grant of jurisdiction is exercised exclusively  
or concurrently with the superior courts. As noted above, the jurisdiction to hear  
personal injury automobile cases with a dollar limit less than what has now been  
granted to the CRT was, prior to the amendment, shared between the provincial and  
superior courts. The CRT has now been given exclusive jurisdiction to hear cases  
under $50,000. It determines its own jurisdiction, and the superior court is obliged to  
stay or dismiss proceedings brought before it. The granting of exclusive jurisdiction  
undermines the superior courts as the “cornerstone of a unitary system of justice”  
(Article 35 Reference at para. 101). A concurrent grant preserves this capacity,  
which is one reason why the grant of limited concurrent jurisdiction to the provincial  
courts did not undermine the role of s. 96 courts.  
[219] In the Article 35 Reference, the majority examined the circumstances in other  
provinces with respect to the grant of jurisdiction to the provincial courts. To my  
knowledge, there is no other tribunal with a similar grant of exclusive jurisdiction over  
specified personal injury claims in any other province in Canada. Thus, the scope of  
the BC court’s jurisdiction varies significantly from those in other provinces in relation  
to personal injury automobile cases.  
[220] The transfer of exclusive jurisdiction to the CRT has resulted in the superior  
courts becoming inaccessible to individuals who have suffered personal injury in an  
automobile accident with a loss under $50,000. In my view, this is a significant  
“maiming” of the jurisdiction of the superior courts (Article 35 Reference at para. 63).  
[221] In Trial Lawyers Association of British Columbia v. British Columbia (Attorney  
General), 2014 SCC 59 [Trial Lawyers 2014], the Court concluded that significant  
 
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court fees could interfere with a litigant’s access to the courts, and that interference  
infringed the core jurisdiction of the superior courts. The Court held at para. 32:  
The historic task of the superior courts is to resolve disputes between  
individuals and decide questions of private and public law. Measures that  
prevent people from coming to the courts to have those issues resolved are  
at odds with this basic judicial function. The resolution of these disputes and  
resulting determination of issues of private and public law, viewed in the  
institutional context of the Canadian justice system, are central to what the  
superior courts do. Indeed, it is their very book of business. To prevent this  
business being done strikes at the core of the jurisdiction of the superior  
courts protected by s. 96 of the Constitution Act, 1867. As a result, hearing  
fees that deny people access to the courts infringe the core jurisdiction of the  
superior courts.  
[222] The Court went on to say that the province does not have the authority to  
enact legislation that prevents people to accessing the courts, which is what has  
occurred with the transfer of jurisdiction here:  
[37]  
This is consistent with the approach adopted by Major J. in Imperial  
Tobacco. The legislation here at issue ― the imposition of hearing fees ―  
must conform not only to the express terms of the Constitution, but to the  
“requirements … that flow by necessary implication from those terms”  
(para. 66). The right of Canadians to access the superior courts flows by  
necessary implication from the express terms of s. 96 of the Constitution Act,  
1867 as we have seen. It follows that the province does not have the power  
under s. 92(14) to enact legislation that prevents people from accessing the  
courts.  
[38]  
While this suffices to resolve the fundamental issue of principle in this  
appeal, the connection between s. 96 and access to justice is further  
supported by considerations relating to the rule of law. This Court affirmed  
that access to the courts is essential to the rule of law in B.C.G.E.U. v. British  
Columbia (Attorney General), [1988] 2 S.C.R. 214. As Dickson C.J. put it,  
“[t]here cannot be a rule of law without access, otherwise the rule of law is  
replaced by a rule of men and women who decide who shall and who shall  
not have access to justice” (p. 230). The Court adopted, at p. 230, the B.C.  
Court of Appeal’s statement of the law ((1985), 20 D.L.R. (4th) 399, at  
p. 406):  
… access to the courts is under the rule of law one of the foundational  
pillars protecting the rights and freedoms of our citizens… . Any action  
that interferes with such access by any person or groups of persons  
will rally the court’s powers to ensure the citizen of his or her day in  
court. Here, the action causing interference happens to be picketing.  
As we have already indicated, interference from whatever source falls  
into the same category. [Emphasis added by McLachlin CJC.]  
As stated more recently in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R.  
87, per Karakatsanis J., “without an accessible public forum for the  
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adjudication of disputes, the rule of law is threatened and the development of  
the common law undermined” (para. 26).  
[39]  
The s. 96 judicial function and the rule of law are inextricably  
intertwined. As Lamer C.J. stated in MacMillan Bloedel, “[i]n the constitutional  
arrangements passed on to us by the British and recognized by the preamble  
to the Constitution Act, 1867, the provincial superior courts are the foundation  
of the rule of law itself” (para. 37). The very rationale for the provision is said  
to be “the maintenance of the rule of law through the protection of the judicial  
role”: Provincial Judges Reference, at para. 88. As access to justice is  
fundamental to the rule of law, and the rule of law is fostered by the continued  
existence of the s. 96 courts, it is only natural that s. 96 provide some degree  
of constitutional protection for access to justice.  
[223] The transfer of jurisdiction does not completely block access to the superior  
courts, as will be discussed below in relation to the appeal process. The legislature  
also has made room for an “interests of justice” exception—the “safety valve”  
discussed by Chief Justice Bauman. However, the onus of establishing that the  
exception applies lies primarily with the claimant, not ICBC. In addition, as noted  
below, the “interests of justice” exception has little meaning after the judicial review  
process.  
[224] For all intents and purposes, the jurisdiction for claims under $50,000 is a  
grant of exclusivity.  
C. Monetary Limit  
[225] The similarity of a monetary limit to pre-Confederation limits is a factor, but it  
cannot be a determinative factor (Article 35 Reference at para. 106).  
[226] A flexible approach to the monetary limit facilitates access to justice,  
especially outside of large urban centres where courts can be readily accessed  
(Article 35 Reference at para. 112). The CRT is primarily an online tribunal, and it is  
easily accessible by the public. (Although since the pandemic, the courts have also  
changed their manner of doing business, with remote hearings using Zoom or similar  
technology, more telephone hearings, and so on.)  
[227] In the Article 35 Reference, the majority determined that today’s equivalent of  
the pre-Confederation monetary limits would establish a range between $63,698 and  
 
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$66,008. The respondents submit that that calculation is based on a ceiling of $100,  
when the ceiling for personal injury claims was more likely to be $40, which would be  
less than half that amount, and well under the $50,000 grant of jurisdiction to the  
CRT.  
[228] In my view, the dispute here is not centred on the monetary amount. If such  
jurisdiction was granted to the provincial courts as concurrent jurisdiction, there  
could be no complaint that that grant of jurisdiction offended s. 96.  
D. Appeal Jurisdiction  
[229] The Article 35 Reference states that “[a]ppeal mechanisms can shed helpful  
light on the question whether a grant of jurisdiction establishes a prohibited parallel  
court that undermines the role of the superior courts of general jurisdiction”  
(at para. 119).  
[230] In the Article 35 Reference, the majority examined the role of the appellate  
function in terms of defining whether the provincially appointed court was a parallel  
court. It said, at para. 121:  
… If decisions of the court with provincially appointed judges can be  
appealed to a superior court of general jurisdiction at little cost, without leave  
and with no requirement of deference on questions of law, then there is a  
very clear hierarchical distinction between the two courts, and the superior  
court of general jurisdiction retains its ability to state the law. It will then be  
more difficult to conclude that the grant of jurisdiction undermines the  
superior court’s role and impermissibly invades its general private law  
jurisdiction. If, on the other hand, there is a right to appeal directly to the  
provincial court of appeal, then there is no hierarchical distinction between  
the two courts and the superior court of general jurisdiction has no sway over  
decisions of the court with provincially appointed judges. In short, that would  
suggest that the court with provincially appointed judges functions as a  
parallel court.  
[231] The CRT does not operate as a “court”. The CRTA sets out the following  
provisions with respect to how hearings are conducted:  
General tribunal authority in conducting hearings  
38  
The procedure for a tribunal hearing in relation to a dispute is at the  
discretion of the tribunal, subject to this Act and the rules.  
 
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How tribunal hearings are conducted  
39  
(1) In resolving a dispute, the tribunal may conduct a hearing in  
writing, by telephone, videoconferencing or email, or through use of  
other electronic communication tools, or by any combination of those  
means.  
(2) It is not necessary for the means of communication referred to in  
subsection (1) to allow all parties to the dispute to take part at the  
same time.  
(3) The tribunal may hold an in-person hearing if the tribunal  
considers that the nature of the dispute or that extraordinary  
circumstances make an in-person hearing necessary in the interests  
of justice.  
(4) Subject to an order under subsection (5), an in-person hearing  
must be open to the public.  
(5) The tribunal may, by order,  
(a)  
impose restrictions on a person's continued  
participation in or attendance at a tribunal hearing, and  
(b)  
exclude a person from further participation in or  
attendance at a tribunal hearing until the tribunal orders  
otherwise.  
Notice of hearing  
40 The tribunal must give notice to the parties as to the following:  
(a) when the tribunal hearing is to be started;  
(b) the means by which it is to be conducted;  
(c) if applicable, where the hearing is to be conducted;  
(d) if applicable, the times by which steps in the hearing are to  
be completed and by whom;  
(e) any other information required to be provided under the  
rules.  
Consent resolution orders if parties resolve issues or claims by agreement  
41  
(1) If, in the tribunal hearing phase, the parties to a dispute reach a  
resolution by agreement on any or all of the issues or claims in the  
dispute, they may ask the tribunal to approve a consent resolution  
order respecting the issues or claims.  
(2) If the tribunal approves the consent resolution order, that order is a  
final decision of the tribunal resolving the specified issues or claims.  
Evidence in tribunal hearing  
42 (1) In conducting a hearing, the tribunal may do any or all of the  
following:  
(a)  
receive, and accept as evidence, information that it  
considers relevant, necessary and appropriate,  
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whether or not the information would be admissible in a  
court of law;  
(b)  
(c)  
ask questions of the parties and witnesses;  
inform itself in any other way it considers appropriate.  
(2) The tribunal is not bound by the rules of evidence, but may not admit  
evidence that is inadmissible in a court because of a privilege under the  
law of evidence or otherwise.  
(3) Unless otherwise required under the rules or by the tribunal, evidence  
to be provided in a tribunal hearing may be provided in electronic form.  
(4) Nothing in this section overrides the provisions of this or any other  
Act that expressly limit the extent to which or purposes for which any oral  
testimony, information, records or things may be admitted or used in  
evidence.  
[Emphasis added.]  
[232] In other words, the CRT has flexible rules of evidence and it does not  
necessarily hear the case synchronously, such that the tribunal member may hear  
from the parties separately. While the legislature is entitled to establish different  
rules of procedure and evidence for the tribunal, the difficulty is that the factual  
foundation laid may not be entirely admissible for appellate review when the court is  
determining the law.  
[233] Chief Justice Bauman has helpfully set out the judicial review provisions in a  
chart at para. 178.  
[234] It is useful to show an example of how the legislation could work. Under the  
judicial review in the legislation at issue (as noted by Bauman C.J.B.C., there have  
been minor amendments), the process for a litigant living with chronic pain  
(presumptively, a minor injury) is as follows: The claimant would file in Supreme  
Court; the Supreme Court would be obliged to stay the claim pending the review by  
the CRT as to the jurisdiction; the CRT would assess whether there was a  
substantial likelihood that the Supreme Court would assess damages higher than  
$50,000, (so the Supreme Court is not deciding what it would likely decide); and the  
Supreme Court then reviews that decision on what it would likely decide on the basis  
of patent unreasonableness, (or “clearly irrational”). Assuming the finding is not  
clearly irrational, the Supreme Court would then be called upon to determine  
Trial Lawyers Association of British Columbia v.  
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whether it was in the (unstructured discretion of) interests of justice to proceed in the  
Supreme Court, which has now essentially been rendered meaningless as a result  
of the judicial review process. I do not see this as a “robust” appellate review  
process.  
E. Impact of the Caseload of the Superior Court of General Jurisdiction  
[235] In the Article 35 Reference, the majority approached the factor of the impact  
on the superior court’s caseload at para. 124:  
A grant of jurisdiction to a court with provincially appointed judges does not  
necessarily deprive the superior court of all forms of involvement in that area  
of jurisdiction. If, for example, the grant in question is subject to a monetary  
ceiling, the superior court of general jurisdiction continues to have jurisdiction  
over claims that exceed the amount of that ceiling. But there may be  
circumstances in which the impact of the grant on the caseload retained by  
the superior court of general jurisdiction in the specific area of jurisdiction  
makes it possible to draw conclusions as to whether that court’s role has  
been undermined and whether a parallel court has been created.  
[236] As noted above in the discussion of the scope of the jurisdiction, the sheer  
number of motor vehicle collision cases in the Supreme Court means that even if  
only a small percentage of these cases are transferred to the CRT, this has a  
significant impact on the caseload of the superior court.  
F. Pursuit of an Important Societal Objective  
[237] The role of the important societal objective was discussed in the Article 35  
Reference as follows:  
[126] Granting jurisdiction to a court with provincially appointed judges may  
be the means a legislature adopts to try to address a societal concern. The  
pursuit of an important societal objective may lend credence to the idea of a  
legitimate exercise of the provincial power in relation to the administration of  
justice, that is, of an exercise of that power for a purpose other than the  
creation of a prohibited parallel court. Access to justice, for example, is an  
important societal objective that could justify granting certain areas of  
jurisdiction to courts with provincially appointed judges (Re: B.C. Family  
Relations Act, at p. 107). The provinces must have considerable flexibility in  
what they do to address the needs of a changing society. The only limit on  
their initiative is that they may not create parallel courts that undermine the  
role of the superior courts of general jurisdiction. That being said, it is not  
enough to allege that there is an important societal objective; it is also  
necessary to show that the objective is real and that there is a connection  
   
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between the grant of jurisdiction to a court with provincially appointed judges  
and the achievement of the objective. Given that the provinces are  
responsible for the administration of justice, for the adoption of rules of  
practice and for the financing of court operations, they cannot avail  
themselves of an access to justice argument on the basis of their own failure  
to give the superior courts sufficient resources.  
[127] Access to justice can also be promoted through features like a  
simplified procedure and simplified rules on the production of evidence. A  
summary procedure, for example, or rules of evidence that are relaxed in  
comparison with those that apply in the superior courts, will make the court  
with provincially appointed judges distinctive. It will then be more difficult to  
conclude that the grant of jurisdiction establishes a prohibited parallel court  
that prevents the superior court of general jurisdiction from playing its role.  
Other features such as the types of remedies that may be ordered (Tomko, at  
pp. 123-25) or the absence of representation by lawyers can also be taken  
into consideration.  
[Emphasis added.]  
[238] Chief Justice Bauman is of the view that it is not the court’s duty to consider  
whether the transfer of jurisdiction is actually working (para. 150). In my respectful  
view, that is precisely what the Court is saying in the Article 35 Reference when it  
requires proof not only of the societal objective, but also that the objective is real,  
and that there is a connection between the grant of jurisdiction and the achievement  
of the objective. This point is also made clear in Trial Lawyers 2014 at paras. 60–63.  
[239] Access to justice includes access to the courts in a manner affordable to the  
general public (Trial Lawyers 2014 at paras. 38–42). It can also encompass access  
to awards for injury at a lower cost and in a more efficient manner.  
[240] In British Columbia, contingency fees with respect to personal injury claims  
have long been in existence. Fees are generally a percentage of the final award, and  
nothing is payable in advance, including expert reports. This is one area where an  
injured person had easy access to the courts, and concomitantly, easy access to  
justice.  
[241] On the other hand, it is no secret that proceeding through the courts can be a  
long and arduous process. The superior courts, in the development of their rules,  
have taken steps over the years to try and reduce the cost of litigation and speed up  
access to justice in the forms of summary trials, fast-track litigation, and limited  
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expert reports (see Supreme Court Civil Rules 9-7 and 15-1; Evidence Act, R.S.B.C.  
1996, c. 125, s. 12.1). As noted in para. 127 of the Article 35 Reference, the  
provincial courts also have simplified rules of procedure.  
[242] The EY Report makes it clear that the societal objective of the transfer of  
jurisdiction is keeping Basic insurance rates low. In my view, while this is an  
important societal objective, it has little to do with access to justice. It is a political  
objective. The government, according to the EY Report had to either raise  
insurances rates significantly, (not something the government wished to do, as is  
clear with ICBC’s history), or create an alternative method of lowering ICBC costs. It  
chose to create a tribunal comprised of civil servants whose task is to resolve claims  
while lowering the cost to ICBC.  
[243] As the Court held in the Article 35 Reference at para. 126:  
Given that the provinces are responsible for the administration of justice, for  
the adoption of rules of practice and for the financing of court operations, they  
cannot avail themselves of an access to justice argument on the basis of their  
own failure to give the superior courts sufficient resources.  
[244] In my view, the purported objective of “access to justice” is erroneous. That  
may well be an objective, but in my view, the main objective of alleviating the  
significant debt of ICBC without raising premiums (a politically unpopular step) is not  
a societal objective that justifies the transfer of power from the superior courts to the  
CRT.  
[245] The CRT operates very differently than the superior court in terms of  
procedures. However, no evidence was adduced in relation to the cost of operating  
the CRT and how its procedures are an improvement on the superior courts in terms  
of access to justice.  
G. Lack of Independence of the Tribunal  
[246] The CRT, for all of its human-centred design and user-friendly approach, is  
not a court and its decision makers are not judges. They are civil servants with none  
of the protections of their actual and perceived independence that are provided, in  
 
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the public interest, to judges. This is particularly important in cases in which the  
provincial government is a party. The public ought to have assurances that decision  
makers are independent and reasonably perceive them to be independent,  
something that is simply not possible under the current structure of the CRT. The  
legislation at issue engages ICBC either as a named party, or defending the  
insurance claim. ICBC is a Crown corporation, which, according to the EY Report, is  
in dire financial trouble. One wonders how a tribunal established by the province can  
be seen to fairly adjudicate injury claims when its grant of legislation is made on the  
basis that ICBC needs to save money.  
[247] Chief Justice Bauman is of the view that independence is not a matter for  
consideration in this litigation. I beg to differ. In my view, it is an important factor in  
the context of the transfer of the jurisdiction in question.  
H. Weighing the Factors  
[248] In the Article 35 Reference, the majority set out the weighing process:  
[132] To determine how much latitude a legislature has should it wish to  
exceed these historical ceilings, we must consider the various factors of the  
multi-factored analysis: the scope of the jurisdiction being granted, whether  
the grant is exclusive or concurrent, the relationship between the proposed  
monetary limit and the historical monetary ceilings, appeal mechanisms, the  
impact of the jurisdiction-granting provision on the superior court’s caseload,  
and whether there is an important societal objective. All these factors are  
weighed in order to strike an appropriate balance between recognition of the  
provinces’ jurisdiction over the administration of justice and preservation of  
the nature, the constitutional role and the core jurisdiction of the superior  
courts of general jurisdiction.  
[133] The more the analysis of the above factors suggests that the core  
jurisdiction of those courts has been infringed on, the less the province will be  
allowed to depart from the updated historical monetary ceilings. Conversely,  
the less the analysis of the factors in question suggests that the core  
jurisdiction of the superior courts has been infringed on, the more the  
province will be free to depart from those ceilings. This is essentially a  
continuum. At one end of the spectrum, the grant of a vast jurisdiction that is  
exclusive, is not accompanied by a mechanism for appealing a decision to a  
superior court of general jurisdiction, has a significant impact on that court’s  
caseload and is not justified having regard to an important societal objective  
will limit the legislature’s freedom and is not constitutional. The impact of such  
a grant on the superior court of general jurisdiction could be so great that  
merely complying with the historical monetary ceilings would not suffice under  
s. 96. At the other end of the spectrum, the concurrent grant of a more limited  
 
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jurisdiction — one that is accompanied by a mechanism for appealing a  
decision to a superior court of general jurisdiction, has little impact on that  
court’s workload and is justified having regard to an important societal  
objective — will give the legislature considerable flexibility. In every case,  
however, there must be a reasonable connection between the monetary  
ceiling contemplated by the legislature and the updated historical ceilings.  
The two ceilings must be in a similar range so as to be consistent with the  
general division of labour at the time of Confederation. In the same way, an  
exclusive grant cannot “maim” the superior courts by impermissibly infringing  
on their core jurisdiction.  
[Underlining emphasis added; italic emphasis in original.]  
[249] The transfer of jurisdiction here is not as vast as that in the Article 35  
Reference. It is, however, an exclusive jurisdiction of an important aspect of the law,  
which will require significant legal analysis in the not-so-distant future, particularly in  
terms of liability issues. The development of the law may well be stymied by that  
transfer. The appeal process is by way of a cumbersome judicial review process,  
although the monetary sum is within that which was established at Confederation.  
Despite the “discrete” nature of the transfer, the so-called “minor injuries”, there is  
still a significant number of cases that will be removed from the jurisdiction of the  
superior courts. There is not, in my view, a sufficiently important societal objective  
that justifies the transfer of jurisdiction from the superior courts. The lack of  
independence of the CRT is of importance in this transfer of jurisdiction given the  
fact that ICBC is a Crown agent.  
[250] In my view, the impugned sections infringe s. 96 when all of the factors are  
weighed and considered together. The CRT has been established as a parallel court  
assigned to deal with personal injury from motor vehicle claims. As a result, the unity  
and uniformity of the Canadian judicial system is undermined, and the core  
jurisdiction of the superior court has been impermissibly infringed.  
[251] I would dismiss the appeal, and uphold the order of Hinkson C.J.S.C.  
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III. Cross Appeal  
[252] I agree with the disposition of the cross appeal as outlined by Bauman  
C.J.B.C.  
“The Honourable Madam Justice Bennett”  
 


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