Under the Civil Resolution Tribunal, a decision has been published – it is the only one under Minor Injury Determinations. It is referenced as Naqvi v. ICBC, 2020 BCCRT 995 published on September 4, 2020.
I have spoken to many individuals in the last few months that have indicated that they have spoken to a lawyer, but the lawyer has indicated that as their case is likely a minor injury, they will not take on their claim. In most cases, lawyers have advised the injured person to call back in 4 months.
It is likely that settlements may be occurring without the benefit of first seeking legal advice.
This case was an application by the Plaintiff to seek a determination to set aside a settlement on the basis that the injury sustained is not deemed “minor”.
Mr. Naqvi says he settled his damages claim related to the May 23, 2019 accident because, at the time, he believed his injuries were “minor injuries” as defined by section 101 of the Insurance (Vehicle) Act (IVA). Mr. Naqvi says he subsequently experienced a flare-up of his injuries, and he no longer believes the injuries are minor.
The Claimant is seeking that a minor injury determination be made, and if the injuries are deemed not minor, than the settlement should be set aside.
Of course, this determination is being set aside by ICBC (on behalf of the Respondents).
The test is not any different in the CRT. The Claimant bears the burden of proof on a balance of probabilities. This is why it is very important to ensure that you seek legal advice prior to accepting any settlement offers, regardless of the jurisdiction.
Law and Analysis
- As stated in McIsaac v. McIsaac, 2010 BCSC 691, in order to set a settlement aside, Mr. Naqvi must have been unfairly induced to accept the settlement, and the settlement must be grossly unfair or grossly inadequate. Even if parties are not on equal footing, if the settlement is fair and reasonable, it will not be set aside.
- There are two tests to assess the validity of a settlement, and to have a settlement set aside or voided: (1) whether, when the settlement is looked at in the light of the adjuster’s knowledge at the time the settlement was entered to, the bargain was fair, just and reasonable, and (2) if the transaction as a whole is not sufficiently divergent from community standards of morality then it should not be rescinded (McIsaac, paragraph 18, citing McCullough v. Hilton, 1998 CanLII 4316 (BCCA)).
This matter was dismissed.
Conclusion:
Based on all of the factors outlined above, I find the bargain was not grossly unfair or unconscionable. I find the settlement agreement is valid, and therefore this dispute must be dismissed.
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- Under section 49 of the CRTA, and the CRT rules, a successful party is generally entitled to the recovery of their tribunal fees and dispute-related expenses. Here, the respondents were successful but there is no evidence they paid any tribunal fees, nor do they claim any dispute-related expenses. Therefore, I make no order for same
A brief review of some key facts you should be aware of as it relates to the Minor Injury Regulations and the CRT (Civil Resolution Tribunal).
CRT has jurisdiction over:
1.Benefits paid or payable;
2.Injury determinations; and
3.Liability and damages for claims under the CRT limit of $50,000.
To have a claim removed from the CRT, you must satisfy the following:
1.the issues in the claim or the dispute are too complex; or,
2.the damages have a substantial likelihood of exceeding $50,000.
Important Factors:
- Effective for MVA’s post April 1, 2019 ($5,500 limit)
- Minor Injuries from April 1, 2020 to March 31, 2021, the limit is $5,627
- Entitled to 1 expert
- May seek CRT’s approval for up to 2 more experts
- the CRT will consider whether the additional expert evidence is reasonably necessary and proportionate to the claim.
Costs: CRT may order up to a maximum of $5,000 in Costs
Expert: CRT may order up to $2,000 reimbursement for expert, which amount is included in the $5,000 costs
IME: CRT may order up to $2,000 for an IME Expert plus reasonable travel and expenses.
This is in excess to the $5,000 costs.
Arguments to consider to have a claim fall outside of the the Minor Injury Defintion:
1.Suitability factors;
2.Complex liability (Fact pattern may be a good argument)
3.Injuries involved (evidence required to establish injuries).
Satisfactory evidence to compel the CRT that it does not have jurisdiction:
1.Incapacity of the Claimant;
2.Serious impairment or permanent disfigurement;
“incapacity”, in relation to a claimant, means a mental or physical incapacity that is not resolved within 16 weeks and (b) is the primary cause of a substantial inability of the claimant to perform their educational, employment and daily activities.
The key focus in each claim:
Prescribed criteria for definition of “serious impairment“
(i)the essential tasks of the claimant’s regular employment, occupation or profession, despite reasonable efforts to accommodate the claimant’s impairment and the claimant’s reasonable efforts to use the accommodation to allow the claimant to continue the claimant’s employment, occupation or profession,
(ii)the essential tasks of the claimant’s training or education in a program or course that the claimant was enrolled in or had been accepted for enrolment in at the time of the accident, despite reasonable efforts to accommodate the claimant’s impairment and the claimant’s reasonable efforts to use the accommodation to allow the claimant to continue the claimant’s training or education, or
(iii)the claimant’s activities of daily living;
Definition of “minor injury“
an abrasion, a contusion, a laceration, a sprain or a strain;
a pain syndrome;
a psychological or psychiatric condition;
a prescribed injury or an injury in a prescribed type or class of injury;
a concussion that does not result in an incapacity;
a TMJ disorder;
a WAD injury
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