The Civil Resolution Tribunal vs s. 96 of the Constitution and no hat for a Pastafarian

Legally Speaking with Michael Mulligan

This week on Legally Speaking with Michael Mulligan:

To ensure their independence, Superior Court Judges hold office on good behavior, until age 75, and can only be removed by the Governor General on address of the Senate and House of Commons.

The point of this is that you don’t want judges to be fired when they made decisions that the government doesn’t like.

If you have a dispute with the government, you want to know that the judge hearing the case isn’t worried about being fired if they decide in your favour.

This protection would not be very meaningful if the government was able to transfer decision-making authorly to people who were not independent.

As a result section 96 of the Constitution Act, 1867 has been interpreted so as to restrict the ability of governments to transfer authority over the core jurisdiction of superior courts to other bodies.

As part of a plan to move to a mandatory a no-fault automobile insurance system, the province of British Columbia attempted to transfer authority over claims of up to $50,000, as well as the authority to determine if an injury was “minor”, so as to cap compensation, to a body called the Civil Resolution Tribunal.

Employees of the Civil Resolution Tribunal work on short-term contracts for the provincial government. They have none of the protections afforded judges and could be fired, or not have their contracts renewed if they made decisions which the government didn’t like.

From a fairness perspective, it’s not appropriate to have employees of one of the parties to a dispute making decisions about it.

From a legal perspective, Chief Justice Hinkson determined that the attempt to transfer authority over claims up to $50,000, and the power to determine if injuries were “minor” was unconstitutional because of section 96.

As a result, people who have a dispute about these matters with ICBC will be able to have a judge, rather than a Civil Resolution Tribunal employee, decide.

Also on the show: an example of where the Civil Resolution Tribunal is an appropriate forum to resolve small disputes between private parties: a family was able to avoid paying $4,998.54 for a return Air Canada flight from India which was canceled due to COVID-19. The adjudicator concluded that the contract with a travel agent was frustrated when the return flight was canceled and could not be rebooked in a reasonable period of time.

Finally, the BC Supreme Court dismissed an application for judicial review of a BC Human Rights Tribunal decision which refused to accept a complaint by a Pastafarian and member of the Church of the Flying Spaghetti Monster.

The Pastafarian wished to wear a pasta colander, or a three-cornered hat known as a pirate’s tricorn, for his driver’s licence photo on the basis that he claimed these to be religious headgear.

The BC Human Rights Tribunal refused the complaint on the basis that ICBC was not required to accommodate a practice satirizing religious practices.

The Pastafarian argued that the Church of the Flying Spaghetti Monster was a duly constituted society and in good standing in BC and that neither its constitution nor its bylaws mandate the mocking of religious beliefs or religious practices.
Follow this link for links to the cases discussed.