Litigation 2023 – Personal Injury

Trends and Developments

Recent Developments in Canada’s Legal Landscape

Introduction and summary

In Canada, commercial litigators and courts are returning to
in-person proceedings and business as usual. At the same time, many
of the practices implemented during the COVID-19 pandemic, such as
increased electronic filing, remain in place and will likely be
permanent. This article will outline some of these initiatives and
changes, which are expected to become more widespread and
permanent.

The discussion will also cover the hotly debated topic of
whether employers can require employees to be vaccinated and/or
provide proof of immunisation against COVID-19. Although the
various government-implemented vaccine mandate programmes in Canada
have now ended (not without some controversy), the validity of
mandatory employer vaccination policies continues to be raised in
labour arbitrations and has recently been considered by the British
Columbia (BC) Supreme Court.

This article will also highlight two recent decisions of
Canada’s highest court, the Supreme Court of Canada (the SCC),
in which the SCC reiterated that retroactive tax planning is not
permitted in the country. In another case involving professional
misconduct, the SCC clarified that there is no established length
of time at which delay in administrative proceedings amounts to an
abuse of process, and the reasoning in this case is likely to be
applied in civil proceedings.

Finally, some of the recommendations from the final report of
the Commission of Inquiry into Money Laundering in British Columbia
will be set out, alongside a summary of an upcoming case to be
heard by the SCC that is anticipated to provide new insights into
legislation that is meant to mitigate the harmful effects of
so-called Strategic Lawsuit Against Public Participation (SLAPP)
lawsuits.

Access to justice initiatives and practice
changes

The pandemic highlighted the need to improve access to justice
for persons who represent themselves in court, and the courts in
some provinces have taken steps to address this issue. For example,
BC has enacted a new Court of Appeal Act (the Act) and new Court of
Appeal Rules (the Rules), effective 18 July 2022, which are
intended to help modernise the court system and improve access to
justice. Among other things, the new Act and Rules clarify the
requirements for applying for leave (permission) to appeal and
update the requirements for filing and serving documents related to
an appeal. The new Rules also outline the process for referring an
appeal to case management, as well as the types of orders that a
judge conducting case management can order. The new Rules include
new court forms with plain-language instructions and that are
considered more readable than the previous court forms.

The Canada Trends & Developments chapter in
last year’s litigation guide noted the introduction of
Ontario’s Justice Accelerated Strategy, a multi-year plan to
accelerate access to the justice system. In December 2021, as part
of the Justice Accelerated Strategy, Tribunals Ontario implemented
a new case management system that streamlines the dispute
resolution process by allowing applications to be filed, processed,
and scheduled online. The Landlord and Tenant Board is the first
tribunal to implement the new system, which will eventually be
expanded to include more tribunals, boards and commissions.

The Canada Trends & Developments chapter in the
2019 litigation guide also covered the BC Civil Resolution
Tribunal (CRT), an online tribunal with statutory jurisdiction to
resolve certain categories of civil disputes. In 2019, through a
package of amendments to the Civil Resolution Tribunal Act (CRTA),
the BC government expanded the CRT’s jurisdiction to include
claims for injuries sustained in motor vehicle accidents up to
CAD50,000. The BC government had suggested that the existing system
of compensating for minor personal injuries in tort was threatening
both the viability of the public insurer and the actual
compensation recovered by victims of minor injuries. The CRTA
amendments granted the CRT jurisdiction to determine the following
issues:

• the claimant’s entitlement to no-fault accident benefits
  payable under the province’s Insurance (Motor Vehicle)
  Act;




• whether an injury is a “minor injury” under the
  Insurance (Motor Vehicle) Act; and




• liability and damages for personal injury of CAD50,000 or
  less.

As a result of these changes, the CRT was granted presumptive,
but not exclusive, jurisdiction to adjudicate the liability and
monetary damages when the presumption that the damages would be
below CAD50,000 was not rebutted.

In March 2021, the Trial Lawyers Association of BC (and several
plaintiffs in motor vehicle claims) successfully challenged the
expansion of the CRT’s jurisdiction through these CRTA
amendments on the basis that the expansion of jurisdiction was
unconstitutional because it improperly granted the CRT (a
provincial statutory tribunal) jurisdiction over matters belonging
to the superior courts. The reasons of the BC Supreme Court Chief
Justice upholding the constitutional challenge are reported as
Trial Lawyers Association of British Columbia v British Columbia
(Attorney General). However, in May 2022, the BC Court of Appeal
overturned this decision, finding the amended sections of the CRTA
were constitutional. Among other things, the Court of Appeal agreed
that the CRT was meeting an important societal objective and the
innovative scheme created under the CRTA represented a new form of
access to civil justice for victims of minor injuries suffered in
motor vehicle accidents in BC, reflecting an integrated
comprehensive effort at reform directed at a social mischief
identified by other branches of government.

Mandatory vaccination policies (MVPs) in the
workplace

Workplaces have changed rapidly since the emergence of COVID-19.
After the World Health Organization declared a worldwide pandemic
in March 2020, there was a whirlwind of workplace health and safety
protocols introduced to help combat its spread. Following the
development and release of various COVID-19 vaccines, which have
been proved to be safe and effective in preventing the spread and
harmful health consequences of COVID-19, many Canadian employers in
the private sector adopted MVPs that aligned with government
directives requiring proof of vaccination for public service
employees.

In Canada, MVPs are currently being tested in courts and in
labour arbitrations, with the overarching question being an
employer’s right to mandate vaccination. While many arbitrators
have upheld MVPs, finding that they strike the right balance
between an employer’s health and safety interests and the
interests of employees who are unvaccinated, other arbitrators have
found certain terms of the MVPs to be unreasonable, such as
provisions that allow for discipline, up to and including
discharge, of employees who remain unvaccinated, or provisions that
apply to unvaccinated employees who work exclusively from home or
exclusively outside.

In a recent Ontario arbitration brought pursuant to the Ontario
Labour Relations Act, 1995, the arbitrator held that a vaccine
mandate that required two doses (of a two-dose vaccine) was no
longer reasonable based on evidence indicating that there is
negligible difference in the risk of transmission in respect of the
Omicron variant as between a two-dose vaccine regimen and remaining
unvaccinated.

The arbitrations in which MVPs have been successfully contested
should not be taken as support for remaining unvaccinated against
COVID-19, in the absence of a legitimate exemption. Importantly,
each case was decided on its own particular facts and the state of
knowledge at the time the policy was implemented. As a consequence,
“what constitutes a reasonable mandatory vaccination policy in
the course of a pandemic is contextual and highly
dynamic”.

In September 2022, the BC Supreme Court weighed in on the
delicate balancing exercise of an employee’s personal beliefs
against an employer’s interest in ensuring the protection of
the health and safety of all other employees in the workplace.
Parmar v Tribe Management is the first judgment in Canada involving
a civil claim brought by an employee who was placed on an unpaid
leave of absence for non-compliance with an MVP.

The plaintiff, who was unvaccinated out of concern for negative
side effects, claimed that she had been constructively dismissed
(meaning that her employment was effectively ended) after she
refused to comply with the MVP that her employer (Tribe) had
implemented in October 2021. At that point in time, along with the
establishment of various government vaccine mandates, employers in
the private sector were strongly encouraged to adopt and implement
policies that aligned with the government directives.

The Court explained that the plaintiff’s suspension without
pay would constitute constructive dismissal if a reasonable person
in her place would have felt that the essential terms of her
employment contract were being substantially changed. In making
this determination, the Court considered various factors, such as
the duration of the suspension, whether someone was appointed to
replace the plaintiff, whether she continued to be paid and receive
benefits, and whether Tribe suspended her in good faith, for
example, for bona fide business reasons.

Because the plaintiff had not been terminated or replaced and
had continued to receive certain employee benefits, the Court
focused principally on whether Tribe had bona fide business
reasons, including safety reasons, for the MVP and for placing the
plaintiff on unpaid leave. The question considered by the Court was
not whether the MVP was a perfect policy, but rather whether it was
a reasonable approach when implemented, given the uncertainties
then presented by the pandemic.

After considering the circumstances facing Canada, and the rest
of the world, in dealing with the COVID-19 during the time period
that Tribe implemented its MVP, the Court concluded that the MVP
struck an appropriate balance. Tribe had been consistent in its
position that the plaintiff could return to her employment upon
becoming vaccinated. It was the plaintiff’s choice to remain
unvaccinated. Tribe had ensured that employees like the plaintiff
could maintain a principled stance against vaccination without
losing their employment by being put on a leave of absence. She had
voluntarily opted to resign in January 2022.

As a key takeaway, this decision indicates that courts will
assess the reasonableness of MVPs based on the state of knowledge
about COVID-19 at the time they were implemented. Where an MVP
reflects the prevailing approach at the time and strikes an
appropriate balance between an employer’s business interests
and the rights of its employees to a safe work environment, it will
likely be found to be reasonable by the court.

No set time where delay becomes abuse of process

The Canadian Charter of Rights and Freedoms, among other things,
protects the right of a person charged with a criminal offence to
be tried within a reasonable time. In 2016, in R. v Jordan, 2016
SCC 27 (Jordan), the SCC established timelines for addressing
institutional delays in criminal proceedings (generally, from the
date the accused is charged with a criminal offence, the trial must
be complete within 18 or 30 months, depending on the level of court
in which the trial is being held).

In July 2022, the SCC released Law Society of Saskatchewan v
Abrametz, a professional disciplinary case where the main issue was
whether the delay in the proceedings amounted to an abuse of
process. The lawyer who was the subject of the proceedings, Mr
Abrametz, asked the SCC to recognise inordinate delay in
administrative proceedings as prejudicial in and of itself, relying
in part on the SCC’s decision in Jordan. However, the SCC
refused to extend Jordan to administrative proceedings, reiterating
that the test for whether delay that does not affect hearing
fairness nonetheless amounts to an abuse of process is contextual.
Delay will amount to an abuse of process if it is manifestly unfair
to a party or in some other way brings the administration of
justice into disrepute.

Retroactive tax planning barred by SCC

In June 2022, the SCC ruled on a case involving tax planning
gone wrong, sending a clear message that taxpayers cannot avoid
unanticipated adverse tax consequences by relying on the equitable
jurisdiction of the courts to relieve them from the effect of their
mistakes. According to the majority of the SCC, taxpayers should be
taxed based on what they actually agreed to do and what they did,
and not on what they could have done or later wished they had
done.

Canada (Attorney General) v Collins Family Trust concerned a tax
planning approach that had been devised for the purported purpose
of protecting the assets of an operating company from creditors
while at the same allowing dividend income from the operating
company to avoid being subject to tax. The planning approach was
meant to take advantage of certain sets of rules under the Income
Tax Act.

However, after the plan was implemented, the Federal Tax Court
(issues of income tax are federal in nature and not provincial)
adopted a narrower interpretation of the law, and the Canada
Revenue Agency issued notices of reassessment imposing tax
liability. To avoid having to pay the assessed amounts, the family
trusts sought to rescind the series of transactions leading to the
dividend payments. They filed their petitions in BC because the
companies at issue were incorporated there.

The BC Supreme Court granted rescission, following an earlier
appellate decision that upheld an order rescinding the same types
of transactions on the basis of a mistake about their tax
consequences. The Court of Appeal affirmed the lower Court’s
decision. It reconciled two prior SCC decisions that disallowed
taxpayers from retroactively altering a transaction to achieve an
intended tax objective by reasoning that those cases dealt with
different equitable remedies than rescission.

The majority of the SCC ruled that the courts below had erred.
The majority emphasised that equity was developed for situations
that demand relief as a matter of “conscience” and
“greater fairness.” While a court may exercise its
equitable jurisdiction to grant relief against mistakes in
appropriate cases, it cannot do so to achieve the objective of
avoiding an unintended tax liability. The majority took the view
that there is nothing unconscionable or otherwise unfair about the
operation of a tax statute on transactions freely undertaken. The
prohibition against retroactive tax planning should be understood
broadly, precluding any equitable remedy by which it might be
achieved, including rescission.

New development in SLAPP lawsuits

The Canada Trends & Developments chapter in the
2021 litigation guide covered legislation in British
Columbia, Ontario, and Québec that was enacted to mitigate
the harmful effects of lawsuits intended to dissuade persons from
speaking out or taking positions on issues of public interest. This
type of lawsuit, which has proliferated in recent years, is known
as a SLAPP; that is, a “strategic lawsuit against public
participation”. The anti-SLAPP legislation in those provinces
allows a party named in a SLAPP to apply to the court to dismiss
the SLAPP on an expedited basis if that party can satisfy the court
that the proceeding against it arose from an expression it made,
which relates to a “matter of public interest”. The
burden of proof then shifts to the party who brought the
proceeding, who must satisfy the court of the following three
things:

• there are grounds to believe its proceeding has substantial
  merit;




• the moving party has no valid defence; and




• the public interest in permitting the proceeding to continue
  outweighs the public interest in protecting the expression. If any
  of these three things cannot be established, the court will dismiss
  the underlying proceeding as a SLAPP.

The same chapter also discussed two decisions released by the
SCC in September 2020 that applied the framework created under
Ontario’s anti-SLAPP legislation. Both of these cases shed
light on the requirements for bringing and defending anti-SLAPP
motions. More recently, the opportunity has once again arisen to
clarify provincial anti-SLAPP laws, as the SCC has granted leave to
appeal from a judgment of the BC Court of Appeal on an action in
defamation that was dismissed before trial under BC’s
anti-SLAPP statute, the Protection of Public Participation Act (the
PPPA).

Neufeld v Hansman involved a public school trustee, Mr Neufield,
who made negative comments in a Facebook post about the way a
programme designed to teach children about sexual orientation and
gender identity was being implemented in schools. The respondent,
Mr Hansman, who was the then-president of the BC Teachers’
Federation, was highly critical of Neufeld’s statements when
interviewed by the media. Mr Neufeld commenced an action in
defamation against Mr Hansman, but it was dismissed before trial
under the PPPA.

The outcome of the appeal turned on whether the BC Supreme Court
had erred in interpreting and applying the PPPA, in particular with
respect to whether the moving party (Mr Hansman) had “no valid
defence” in the underlying proceeding, and whether the harm to
Mr Neufeld was serious enough that the public interest in
continuing the proceeding outweighed the public interest in
protecting Mr Hansman’s expression.

The Court of Appeal concluded that, firstly, contrary to the
findings of the BC Supreme Court, there were grounds to believe
that Mr Hansman’s defence of fair comment was not valid for at
least some of the expressions at issue in the action. The test for
the defence of fair comment requires (among other things) the
comment to explicitly or implicitly indicate, at least in general
terms, the facts on which the comment is based. The facts must also
be sufficiently stated or otherwise known to listeners so that they
are able to make up their own minds on the merit of the comment.
The Court of Appeal took the view that Mr Hansman would not
necessarily be able to establish that the facts relied on to
support some of his comments about Mr Neufeld were either stated in
the impugned publications or so notorious as to be known to readers
and listeners. The BC Supreme Court was also found to have erred in
deciding that the reasoning in existing case law would preclude a
trier of fact from finding a defence of fair comment in the present
case, and for certain of its conclusions in respect of whether Mr
Hansman was motivated by malice.

The Court of Appeal concluded, lastly, that the BC Supreme Court
had erred when considering the final step of the test under the
PPPA: weighing the competing public interests. Among other things,
the Court of Appeal opined that the lower court had failed to
consider the other side of the equation – that is, the public
interest in protecting the actual expression that was the subject
matter of the lawsuit. If Mr Neufeld’s claim was summarily
screened out at this early stage, the risk arose that people might
decline to engage in public debate for fear of being inveighed with
negative labels and accusations of hate speech, like Mr Neufield
was, with no opportunity to protect their reputation.

It remains to be seen whether the SCC will affirm the Court of
Appeal’s reasoning that it is necessary to consider, as part of
the anti-SLAPP analysis, the collateral effect that preventing
someone from defending themselves from serious accusations could
have on other people’s willingness to express themselves on
issues of public interest in the future.

Money laundering

On 15 June 2022, after over 130 days of hearing evidence, the
Commission of Inquiry into Money Laundering in British Columbia
(the “Cullen Commission”), established in May 2019,
released its final report. The Cullen Commission concluded that
money laundering is a significant problem in BC across multiple
sectors, and that the federal and provincial governments had been
largely ineffective in addressing money laundering across the
country. Among other things, the Cullen Commission recommended
accelerating the implementation of a publicly accessible Canadian
corporate beneficial ownership registry before the end of 2023. The
Cullen Commission also recommended that law enforcement entities
vigorously pursue civil asset forfeiture.

Originally Published by Chambers Global Practice
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