Canada: Minor Injury Cap – Motor Vehicle Claims In BC (Part 2)

Part 1 of this two-part post explored how a minor injury is defined under the new legislation. Part 2 discusses how minor injuries are dealt with and also reviews changes to the no-fault accident benefits regime under the Insurance Vehicle Act ("IVA"), closing off with some key takeaway points.

2. What Happens if an Injury is Minor? (The Civil Resolution Tribunal)

Changes to the Civil Resolution Tribunal Act ("CRTA") as well as the introduction of the new Accident Claims Regulation (the "ACR") create a specific process for the adjudication of minor injury claims. Rather than being adjudicated through the Supreme Court, the de facto process for dealing with these minor injury claims is through the Civil Resolution Tribunal, commonly referred to as the CRT. Previously, the CRT had been tasked with handling strata property matters and low-value small claims. However, further to the changes to the CRTA, the CRT will have jurisdiction over the following three motor vehicle accident-related areas:

(a) the entitlement to accident benefits;

(b) whether an injury is minor or not; and

(c) liability and damages for claims up to $50,000.
[CRTA, s. 133; ACR, s. 7]

With respect to (c) "claims up to $50,000", the CRT will have jurisdiction over all claims within its monetary jurisdiction, whether they involve minor injuries or not. However, the legislation is designed to keep minor injuries, in particular, within the jurisdiction of the CRT. With respect to non-minor injury claims, a plaintiff continues to have the option to commence their claim in the Supreme Court of British Columbia. However, if their settlement or award is less than the CRT limit amount ($50,000), their recoverable costs are limited to an amount ($5,000 including the cost of own expert report) that would have been permitted if the proceeding had been brought in the CRT [CRTA, s. 135(4)].

With respect to (b) and the minor injury determination, it is up to the parties to take initial positions on whether an injury is minor or not. If the parties agree an injury is not a minor injury, the claim can proceed in Supreme Court [CRTA, s. 16.4(2)(b)]. However, any disagreement must be resolved by the CRT, on request by any party to the CRT. The burden of proving that an injury is not a minor injury is on the party saying that it is not a minor injury [MIR, s. 4]. In other words, it is the plaintiff's burden to prove that their injury is not minor and therefore, not limited by the cap. The CRT has exclusive jurisdiction to determine this question [CRTA, s. 133(2)(a)], which also means the CRT is to be considered an "expert tribunal" [CRTA, s. 56.7] making it difficult to "appeal" a CRT determination on this question by judicial review.

If the plaintiff has commenced an action in the Supreme Court, there is no specific provision of the CRTA requiring that the Supreme Court action be stayed while the CRT makes its determination as to whether an injury is minor or not. However, as with applications to the Workers Compensation Appeal Tribunal for determinations with respect to the worker-worker statutory bar, it seems likely that the parties will refrain from advancing the court action to avoid incurring unnecessary expenses until the minor injury determination is resolved. Alternatively, the parties will be able to apply to court for a stay if they determine one is necessary.

If the CRT determines that an injury is minor, the plaintiff can still have the matter transferred out of the CRT process if it exceeds the CRT monetary jurisdiction of $50,000. However, there is a presumption that a minor injury claim will fall within the CRT's $50,000 jurisdiction unless the party establishes that there is a substantial likelihood that the damages will exceed the limit [CRTA, s. 135]. Furthermore, once an injury is determined to be minor, upon application the Court must stay the court action unless and until it has been established to the CRT that there is a substantial likelihood that damages will exceed the CRT limit [CRTA, s. 16.1]. An example of a minor injury claim that would exceed the CRT limit may be a high-earning individual suffering a minor injury which, while not causing a current substantial inability to perform essential tasks of employment, would affect their ability to work in the long-term, resulting in a loss of capacity award bringing the claim over $50,000.

There is no stated restriction on when a request can be made to the CRT for a determination of whether an injury is minor or not. Practically speaking, it is anticipated these determinations will occur early on as both sides will want to resolve the issue.

Finally, there are many significant differences between the regular court process and the CRT. Some key differences are as follows:

  • the CRT is intended to be a simplified process conducted primarily online through the internet, with electronic written submissions (hearings are the exception, not the norm);
  • the number of medical experts a party will be able to obtain without leave of the CRT is limited to one, and three total if the CRT approves [ACR, s. 4];
  • the CRT may appoint an expert on its own initiative or at the request of a party [ACR, s. 3]; and
  • the amount recoverable for a report or other evidence prepared by an expert is $2,000. The total limit for all recoverable fees, expenses, and charges, including cost of experts preparing a report (but not the cost of an expert appointed by the CRT itself) is $5,000 [ACR, s. 5].

3. Increase of Accident Benefits and Effect on Tort Awards

While most of the focus has been on the minor injury cap, there have been other significant changes to the IVA that will affect treatment of injuries from motor vehicle accidents and the recovery of damages and benefits for motor vehicle claims.

First, the amounts recoverable in a tort claim for health care treatments can be limited by regulation. Effective for accidents occurring on or after April 1, 2019, s. 82.2 (2) of the IVA states that if there is a regulation specifying how much a claimant can recover for any given health care treatment, a claimant will be limited to that same amount. Otherwise, the full value of the treatment can be recovered.

Second, retroactive for all motor vehicle accidents occurring on or after January 1, 2018, statutory accident benefits (Part 7 benefits) have been increased to $300,000 from $150,000. Effective for accidents occurring on or after April 1, 2019, limits on certain benefit payments have been increased, including weekly wage loss payments (from $300/week to $740/week) and homemaking benefits (from $145/week to $280/week).

Third, for any accident occurring on or after May 17, 2018, section 83 of the IVA has been expanded such that additional categories of benefits received by the plaintiff are deductible from their tort claim, most notably private extended health and disability insurance. Previously, only benefits under auto insurance (including ICBC Part 7 accident benefits) were deductible from a plaintiff's tort claim. However, benefits including private disability and extended health benefits are now deductible when calculating the tort damages. One of the effects of this change is to shift the burden of compensating plaintiffs for various benefits from the tortfeasor (i.e. the auto insurer) into the private sector and onto a plaintiff's own insurer. However, at least some private benefit providers who used to advance compensation to claimants for accident-related expenses on the promise of repayment once the tort claim was resolved, have ceased making these advances. This, in turn, shifts the burden of paying for accident-related expenses back onto the no-fault benefit provider. It therefore seems that providers of no-fault accident benefits may end up being primary providers of coverage for accident-related expenses.

Fourth, also for accidents occurring on or after May 17, 2018, another significant change is with respect to future cost of care. A Court can no longer consider the likelihood that the accident benefits will be paid or provided when making mandatory deductions from future cost of care awards. Previously, if there was any uncertainty as to whether accident benefits would cover a future care item, the Court would err on the side of including that care item in the tort award. Further to this change, the Court must deduct from the tort claim any accident benefits that should cover a future care item, regardless of any doubts about whether the amount will be paid when claimed. This change is likely intended to signal that the appropriate venue for disputes about no-fault benefits payments is between the claimant and the benefit provider, not in the tort action.

Overall, the foregoing changes are expected to affect and reduce claims in tort actions for wage loss, special damages and cost of future care.

4. Key Points

There are several practical takeaways from the new changes:

  • Non-pecuniary damages for minor injuries will be capped at $5,500. Determining whether or not an injury is minor requires reference to several provisions in the IVA and the MIR (refer to the flowchart for assistance). It will be up to the parties to decide whether they view an injury as minor or not.
  • Any dispute on whether an injury is minor will be decided by the CRT, with either party able to make a request for a determination through the CRT's website. It is anticipated that there will be a focus on early categorization of injuries.
  • Minor injury claims will also be handled through the CRT. Once a claim is determined to be a minor injury claim, it will be presumed to fall within CRT jurisdiction unless a substantial likelihood is established that it will exceed $50,000.
  • There will be an increased focus on claims for no-fault benefits. Not only have no-fault benefit limits been increased, but there is also now the ability to deduct benefits paid or payable by the first party insurer. This will result in further questioning of plaintiffs as to the existence of these no-fault benefits. The Court is also no longer permitted to take likelihood of recovery of those benefits into account in the tort action. From a defense perspective, wage loss, special damage and cost of care claims will be scrutinized to take advantage of limits on cost of treatments claimed and deductibility of benefits.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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