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.\xa0
The point of this is that you don\u2019t want judges to be fired when they made decisions that the government doesn\u2019t like.
If you have a dispute with the government, you want to know that the judge hearing the case isn\u2019t worried about being fired if they decide in your favour.\xa0
This protection would not be very meaningful if the government was able to transfer decision-making authorly to people who were not independent.\xa0
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.\xa0
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 \u201cminor\u201d, so as to cap compensation, to a body called the Civil Resolution Tribunal.\xa0
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\u2019t like.\xa0
From a fairness perspective, it\u2019s not appropriate to have employees of one of the parties to a dispute making decisions about it.\xa0
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 \u201cminor\u201d 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\xa0 judge, rather than a Civil Resolution Tribunal employee, decide.\xa0
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.\xa0
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\u2019s tricorn, for his driver\u2019s licence photo on the basis that he claimed these to be religious headgear.\xa0
The BC Human Rights Tribunal refused the complaint on the basis that ICBC was not required to accommodate a practice satirizing religious practices.\xa0
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.\xa0