Personal Injury Appeals
If you are unhappy with a decision of the Civil Resolution Tribunal relating to injuries suffered in a motor vehicle accident, you are entitled to apply for judicial review of the tribunal decision in the Supreme Court of British Columbia.
You may wish to be represented by legal counsel on a judicial review. See our Lawyer Directory for a list of experienced personal injury lawyers.
A judicial review is brought in the BC Supreme Court by preparing and filing a petition and supporting affidavits (governed by Supreme Court Civil Rule 16-1). You must name the other parties in the Civil Resolution Tribunal matter as respondents in the judicial review petition, as well as the Civil Resolution Tribunal itself.
You must apply for judicial review within 60 days of the date the final decision is issued by the Civil Resolution Tribunal.
The ordinary remedy granted after a successful judicial review petition is for the Court to quash the decision and send it back to the original decision maker for reconsideration. For this reason, many times even a successful judicial review application in the Courts will not result in ultimate success.
It is not enough to argue to the Court on judicial review that the Civil Resolution Tribunal adjudicator was wrong. Instead, you need to demonstrate, with reference to the affidavit evidence before the Court, that the decision, that the decision of the Civil Resolution Tribunal did not meet the applicable ‘standard of review’.
There are number of standards of review applicable to final decisions of the Civil Resolution Tribunal.
If the question before the Civil Resolution Tribunal which you intend to judicially review is a finding of fact, law or discretion relating to an entitlement to benefits or whether your injury is a ‘minor injury’, you must demonstrate that the decision was patently unreasonable. A decision is patently unreasonable if it borders on the absurd, is irrational or arbitrary, and no amount of judicial deference can justify letting it stand.
If the issue relates to findings of fact with respect of the determination of damages or liability, you must demonstrate that the decision was unreasonable, by showing that it falls outside the range of possible, acceptable outcomes which are defensible in respect of the facts and the law.
If the issues in question relate to findings of law (or questions of mixed law and fact) relating to the determination of liability or amount of damages, the standard of review is correctness. For these issues it is sufficient to demonstrate that the Civil Resolution Tribunal’s decision was wrong.
Finally, if the issue involves questions about procedural fairness, then you will need to demonstrate that the decision was unfair in all of the circumstances. Examples of procedural unfairness may include the following situations:
- You were not provided adequate notice of the proceedings or the issues in the proceedings;
- You were not provided disclosure of the documents on which the other side is relying;
- You were not provided a fair opportunity to make submissions to the Civil Resolution Tribunal;
- You were not provided an opportunity to respond to the opposing side’s case;
- The Civil Resolution Tribunal adjudicator was biased, or there was a reasonable apprehension of bias;
- There was unreasonable delay in the Civil Resolution Tribunal process; or
- You were not provided reasons for the decision of the Civil Resolution Tribunal, or those reasons were significantly inadequate.
Judicial review petitions are generally decided only on the basis of the evidence that was before the Civil Resolution Tribunal, and nothing more.
As a general rule, this “record of proceeding” only includes:
(a) a document by which the proceeding is commenced;
(b) a notice of a hearing in the proceeding;
(c) an intermediate order made by the tribunal;
(d) a document produced in evidence at a hearing before the tribunal, subject to any limitation expressly imposed by any other enactment on the extent to which or the purpose for which a document may be used in evidence in a proceeding;
(e) a transcript, if any, of the oral evidence given at a hearing;
(f) the decision of the tribunal and any reasons given by it;
There are exceptions to this rule, although they are only used in rare cases. Generally, new evidence before the Court must show a lack of jurisdiction or a denial of procedural fairness.
If you are unsuccessful on judicially reviewing the decision of the Civil Resolution Tribunal, you will likely have to pay the opposing side court costs, assessed under the tariff found Appendix B of the Supreme Court Civil Rules.
|Findings of fact or law or an exercise of discretion relating to the determination of:
(a) Entitlement to benefits paid or payable
(b) Whether an injury is a minor injury
(s. 58(2)(a) ATA; 56.7(1)(a) CRT Act)
Discretionary decisions relating to determination of liability and damages (s. 59(3)(4) ATA)
|Findings of fact with respect of the determination of liability (s. 59(2) ATA; 56.7(2) and (3) of CRT Act)||Findings of law and mixed law and fact respect of the determination of quantum of damages (s. 58(2)(c) ATA)
Findings of fact with respect to the determination of damages (s. 58(2)(c) ATA)
Findings of mixed fact and law with respect to liability (s. 59(1) ATA; s. 56.7(2) and (3) of CRT Act)
|Questions about the application of common law rules of natural justice and procedural fairness (s. 58(2)(b); s. 59(5) ATA)|