On April 1, 2019, legislation was formally enacted by the British Columbia government that would introduce major reforms to the automobile insurance industry. This included a monetary cap of $5,500.00 (now adjusted for inflation) on cases involving “minor” injuries, as well as granting the Civil Resolution Tribunal jurisdiction to decide what is a “minor” injury, and to determine liability and damages for cases of $50,000.00 or less.

 

Constitutional challenges were subsequently launched by the Trial Lawyers Association of British Columbia.

 

In recently released Reasons for Judgment in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), the issue for the Court to consider was whether the grant of jurisdiction over certain motor vehicle accident claims to the Civil Resolution Tribunal offends section 96 of the Constitution Act, 1867.

 

In declaring certain sections of the Civil Resolution Tribunal Act to be unconstitutional, namely the section giving the tribunal jurisdiction to determine whether a injury is minor for the purposes of the Insurance (Vehicle) Act, and the section granting the tribunal jurisdiction to decide liability and damages for cases $50,000.00 or less, Supreme Court Chief Justice Hinkson commented :

 

[410]   The plaintiffs have conceded that subsection (a) of s. 133(1) of the CRTA is not, in isolation, unconstitutional. In my view, this subsection is severable. Likewise, the CRT’s jurisdiction to determine liability and damages for motor vehicle claims under $50,000 under subsection (c) is severable from its jurisdiction to determine whether an injury is a minor injury for the purposes of the Insurance (Vehicle) Act under subsection (b).

[414]   I will therefore accede to the plaintiffs’ request, in part, and grant an order declaring that ss. 133(1) (b) and (c) of the CRTA are unconstitutional and of no force or effect. I also declare that s. 16.1 is unconstitutional and should be read down insofar as it applies to accident claims, except for determination of accident benefits under s. 133(1)(a). I decline to grant any order with respect to the Accident Regulations associated therewith.

 

Chief Justice Hinkson also rejected unfounded government allegations that motor vehicle accident injury cases were consistently clogging up the court system, noting that between 2015 and 2019 fewer than one percent of such claims actually proceeded to trial.

 

Barring an appeal, accident victims will now once again be able to pursue their rightful remedies through the courts up to the point in time that the government introduces “no fault” legislation on May 1, 2021, where accident victims will receive no compensation for pain and suffering. Constitutional challenges are expected for this legislation as well.

When people visiting British Columbia from other Provinces, or from outside of Canada, are involved in a motor vehicle accident in British Columbia, they often wonder where legal proceedings need to be commenced. Should it be in British Columbia where the accident occurred, or should it be the jurisdiction in which they live ? Almost invariably, the matter will be subject to the jurisdiction of the British Columbia courts. Conversely, if a resident of British Columbia is hurt in a motor vehicle accident outside of British Columbia, the matter will most likely not be subject to the jurisdiction of the British Columbia courts, but rather to the jurisdiction where the accident occurred. The ultimate question of jurisdiction is to be determined by the relevant provisions of the Court Jurisdiction and Proceedings Transfer Act.

In Wheeler v. Lee, the Plaintiff was injured in a motor vehicle accident near Bellingham, Washington. The Plaintiff was a passenger in a vehicle that was struck by a trailer that came loose from the trailer hitch, causing the vehicle to strike a concrete barrier. The Court had previously granted an Order severing quantum (amount of claim) from liability. In the present application, the Plaintiff brought a summary trial application pursuant to Rule 9-7 of the Supreme Court of British Columbia Rules for judgment against the Defendant with respect to liability. Although both the Plaintiff and the Defendant lived in Victoria, the accident occurred in another jurisdiction. The Court granted the application of the Plaintiff, holding the Defendant liable for the accident.

[2]           I have determined that I can make the necessary findings of fact to render a decision under Rule 7. That is because there is essentially no dispute as to what occurred.

 

[3]           The plaintiff was a passenger in the defendant’s vehicle, a Ford Excursion. The parties were driving south on Interstate 5, a divided highway, a few kilometres south of Bellingham, Washington.

 

[4]           There is no issue of jurisdiction. Both parties live in the city of Victoria.

 

[33]        I am satisfied that the defendant’s negligence was a contributing cause of the accident.  There is no suggestion that the plaintiff had any role in causing the accident.

 

[34]        The evidence establishes that the defendant’s decision to affix a large box to the rear of the accident and to load it with equipment decreased the tongue weight of the trailer and reduced the ratio to an unsafe extent.  The defendant ought reasonably to have known that.

In O’Connor v. Chapman, the Plaintiff was a resident of Alberta who was injured in a motor vehicle accident in British Columbia. Counsel for the Plaintiff commenced formal legal proceedings in British Columbia. ICBC’S lawyer filed a Statement of Defence, wherein liability was admitted. Counsel for the Plaintiff then brought an application to have the matter transferred to the Court of Queen’s Bench in Alberta, pursuant to the Court Jurisdiction and Proceedings Transfer Act. Counsel for the Plaintiff argued that the Plaintiff had received the vast majority of her treatments in Alberta, that all of the expert and lay witnesses lived in Calgary, and that even ICBC’S defence expert, who personally examined the Plaintiff, lived in Calgary as well. The Plaintiff had also earlier been involved in another motor vehicle accident in Alberta, which was at the time subject to litigation proceedings in Calgary. This would undoubtedly raise issues of causation and contribution with respect to the two motor vehicle accidents. The Court, after considering the following factors under the Court Jurisdiction and Proceedings Transfer Act, ruled in favor of the Plaintiff : the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum ; the law to be applied to issues in the proceeding ; the desirability of avoiding multiplicity of legal proceedings ; the desirability of avoiding conflicting decisions in different courts ; the enforcement of an eventual judgment ; and, the fair and efficient working of the Canadian legal system as a whole.

 

[5]               The plaintiff obviously concedes, by way of having filed this action in this province, that the courts of British Columbia have jurisdiction to try this action.  However, the plaintiff says, and the defendant effectively concedes, that the more appropriate forum or the more convenient forum for trying this action is Alberta, given that the defendant has now admitted liability, so that every witness, at least identified to this point in time, required for the trial lives in Alberta; given that the plaintiff resides in Alberta; and given that the plaintiff has an ongoing action for related personal injuries in Alberta, which will raise issues of contribution and causation.

 

[9]               Neither counsel have been able to find a case in which a plaintiff has sought to transfer proceedings from the jurisdiction which the plaintiff initially selected.  Neither have provided me with a case dealing with the interpretation of the CJPTA in a situation where the plaintiff has commenced the application.

 

[12]           In this case, the factors and circumstances overwhelmingly weigh in favour of the court in Alberta being the most appropriate forum for the trial of this action, which is solely a matter of assessing the damages and losses, if any, suffered by the plaintiff as a result of the defendant‘s admitted negligence.

[13]           Under all of the circumstances in this case, I have concluded that the facts are such that I am not bound to follow O’Brien and the cases following O’Brien, and I conclude that a fair, large and liberal construction and interpretation of the CJPTA leads to the conclusion that the plaintiff is not barred from making an application for transfer.

In Dembroski v. Rhainds, a resident of British Columbia was injured in a motor vehicle accident in Alberta. She chose to sue in British Columbia, however her case was dismissed for want of jurisdiction, and this was upheld by the British Columbia Court of Appeal.

 

[39] A number of previous cases in this jurisdiction have held that the residence alone of a plaintiff in British Columbia does not suffice to establish jurisdiction over a defendant resident outside of the province.  These cases include Jordan v. Schatz and Williams v. TST Porter dba 6422217 Canada Inc., 2008 BCSC 1315, 87 B.C.L.R. (4th) 179.  There must be something more, but what is that “more”?  The appellant suggests that since she has suffered damages here and the appellant and several potential witnesses are here, it would be appropriate for the Supreme Court of British Columbia to take jurisdiction over the action.  The appellant points to certain language in the above cases of Moran, Jordan, Pacific International Securities Inc. and Teja supportive of the thesis that a British Columbia court should be found to possess jurisdiction simpliciter over the respondents in this case…

 

[42] Moran and Stanway were both product liability cases in which it was held that the tort occurred in that jurisdiction in which harm accrued to a plaintiff via contact with a defective product.  The harm in each case was caused by an item that harmed the particular plaintiff in the place where that injured party resided.  That sufficed to found jurisdiction over a defendant who did not have any physical presence in such location.

 

[43] As can be seen from those cases, the place where the damage occurred via contact with the item was the crucial factor that underpinned the assumption of jurisdiction.  It seems to me that it was this type of situation that Cumming J.A. had in mind when he observed in Jordan, “Clear examples of connecting factors include the residency of the defendant in the jurisdiction or the fact that the tortious act was committed or damages suffered here” (para. 23).

 

[44] Jordan was a personal injury case arising out of a motor vehicle accident in another province and this Court held that the residence of the plaintiff in British Columbia did not suffice to found jurisdiction.  Although the plaintiff in that case was undoubtedly considered to suffer damage from the sequelae of the accident here, the incident causative of this damage occurred in Alberta and that was the place properly clothed with jurisdiction over a tort action.  Jordan differs from Moran and Stanway because in those latter cases the harm that resulted in damage was caused by contact between the plaintiffs and harmful objects in the jurisdictions where the respective plaintiffs resided.  No such occurrence constituted the foundation of the cause of action in Jordan, hence it was held the British Columbia courts could not properly take jurisdiction…

In Sooparayachetty v. Fox, several residents of British Columbia and the United Kingdom were involved in an accident in Alberta. The parties sued both in Alberta and British Columbia, however the British Columbia cases were dismissed for lack of jurisdiction. The Court discussed the relevant legal principles with respect to the “real and substantial connection” test.

 

[13] The Court of Appeal has recently confirmed that the question of jurisdiction is to be determined exclusively by the substantive rules set out in the Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28 (“CJPTA”):  Stanway v. Wyeth Pharmaceuticals Inc., 2009 BCCA 592, at para. 12.

 

[14] Section 3 of the CJPTA sets out the circumstances in which a court has territorial jurisdiction as follows:

 

A court has territorial competence in a proceeding that is brought against a person only if:

 

(a)        that person is the plaintiff in another proceeding in the court to which the proceeding in question is a counterclaim,

(b)        during the course of the proceeding that person submits to the court’s jurisdiction,

(c)        there is an agreement between the plaintiff and that person to the effect that the court has jurisdiction in the proceeding,

(d)        that person is ordinarily resident in British Columbia at the time of the commencement of the proceeding, or

(e)        there is a real and substantial connection between British Columbia and the facts on which the proceeding against that person is based.

 

[15] Section 10 of the CJPTA sets out a list of circumstances that presumptively constitute a real and substantial connection between British Columbia and the facts on which a proceeding is based for the purposes of s. 3(e).  A plaintiff who is unable to bring herself within the statutory presumptions may nevertheless prove other circumstances which constitute a real and substantial connection.

 

[16] The plaintiffs rely on s. 3(e) of the CJPTA – real and substantial connection between British Columbia and the facts on which the proceeding against the defendants is based.  In this case, the presumptive circumstances in section 10 of the CJPTA do not apply.  It is therefore for the plaintiffs to establish that there is the real and substantial connection necessary to found jurisdiction…

 

 [19] On this application, Ms. Sooparayachetty relies on the fact that she continues to suffer damages in British Columbia arising from the Alberta accident and on the fact that her injuries from the Alberta accident have now been aggravated by a second accident which took place in British Columbia.  These facts are not contentious.  Do they establish a sufficient nexus between the subject-matter of this action and British Columbia?

 

[20] While “real and substantial connection” has not been defined, the cases provide some guidance as to what connections are insufficient to found jurisdiction.

 

[21] It is clear that the fact that a plaintiff is resident in British Columbia is insufficient:  Roed v. Scheffler et al, 2009 BCSC 731, at para. 35, citing Jordan v. Schatz, 2000 BCCA 409, and Williams v. TST Porter (c.o.b. 6422217 Canada Inc.) 2008 BCSC 1315.

 

[22] The fact that a plaintiff continues to suffer damages in British Columbia is insufficient to establish a real and substantial connection on its own: Roed, supra, at para. 43…

 

[26] Since the hearing of this application, our Court of Appeal has rejected the approach set out in Muscutt: see Stanway, supra, paras. 71 to 73.  Smith J.A., writing for the court, held that:

 

In my view, any reliance on the Muscutt factors as a guide to determining the question of jurisdiction came to an end in British Columbia with the coming into force of the CJPTA.

 

[27] Accordingly, the test remains real and substantial connection which appears to require a straightforward determination of whether, on the facts, a real and substantial connection has been established.

 

[28] Applying Roed, the first connection upon which the plaintiff relies to found jurisdiction – damages suffered within British Columbia – is too tenuous.  The question therefore becomes whether the fact that, since the Alberta accident, the plaintiff has been injured in a second accident which occurred in British Columbia can provide the basis for a finding of jurisdiction.  These circumstances were not addressed in Roed.

 

[29] The parties appear to agree that a global assessment of Ms. Sooparayachetty’s injuries will be required.  I take this to mean that they accept that, in order to assess damages for which the Alberta defendants may be liable, the court will be required to assess “global damages” as of the date of trial in respect of both accidents.  Circumstances relating to the second accident will therefore be considered in the assessment of damages for the first.

 

[30] Section 3(e) of the CJPTA provides that the court has territorial competence if there is a real and substantial connection between British Columbia and the facts on which the proceeding against the defendants is based.  While facts relating to the second accident may have to be canvassed in order to assess Ms. Sooparyachetty’s damages arising from the first accident, the two claims remain separate.  In my view, the circumstances relating to the second accident are not facts upon which the proceedings against these defendants are based, and therefore cannot provide the real and substantial connection required by s. 3(e).  The need to call evidence relating to the second accident in the trial of the first, while an appropriate consideration on the question of forum conveniens (see, for example, Stewart v. Stewart, [1995] 6 W.W.R. 402; 5 B.C.L.R. (3d) 350 (S.C.)), does not confer jurisdiction on this court in relation to the first accident, and Ms. Sooparaychetty’s action arising from it.