By Robert Smithson 

The B.C. Court of Appeal recently upheld the premise that perceiving a person to not have a disability does not constitute discrimination.  It’s amazing, to me, that this issue ever actually reached our Court of Appeal.

In 2004 Rex Yuan was involved in a traffic accident.  Another vehicle struck the rear of Yuan’s vehicle while he was stopped at a red light.

Yuan made a claim for personal injuries with the Insurance Corporation of British Columbia (ICBC).  He asserted that, as a result of the accident, he suffered soft tissue injuries to his neck and shoulder.

Because the other vehicle was determined to have been traveling at a very low speed when it struck Yuan’s car, his claim was adjudicated pursuant to ICBC’s low velocity impact (LVI) guidelines.  Those guidelines effectively create a presumption that a low velocity accident victim is less likely to sustain injuries. 

As a result of its scrutiny of the circumstances of Yuan’s accident, ICBC rejected his claim.  Yuan responded by filing a complaint against ICBC of discrimination pursuant to the B.C. Human Rights Code.

The essence of Yuan’s complaint was that, by slotting him into the expedited LVI claim stream, ICBC was pre-determining that injuries were not likely to have resulted from that sort of collision and, thereby, was discriminating against him.

In the words of the Human Rights Tribunal, ICBC put claims into the LVI stream “not because it perceives them as injured and therefore disabled, but, to the contrary, because it perceives them as not injured, or less likely to be injured, and therefore, not disabled or less likely to be disabled.”

The Tribunal asked itself if that perception of someone as not being disabled, or less likely to be disabled, could be discrimination under the Code.  It determined that this could amount to discrimination.

ICBC appealed that decision to Supreme Court of B.C.  The Court overturned the Tribunal’s findings, stating emphatically that a perception that a person does not have a disability does not constitute discrimination against that person.

The Court characterized the Tribunal’s decision as “not based on reason and principle, and … therefore, arbitrary”.  It stated that the effect of the Tribunal’s decision was to tip human rights analysis “on its head” and to “pound another nail into the coffin of common sense”. 

Nonetheless, Mr. Yuan appealed the Supreme Court’s decision.  The Court of Appeal’s recent decision confirmed that the Code “does not protect anyone from being discriminated against on the basis that he or she suffers no disability.”

An insurance company, such as ICBC, does not discriminate “when it treats those who it perceives as having compensable injuries differently from those who it perceives as uninjured”.  That, in fact, is the very purpose of an insurance company.

The Court of Appeal concluded that “Mr. Yuan’s claim had no reasonable prospect of success” and was “entirely misconceived”.  It stated that the Tribunal’s decision was “patently unreasonable”, was based on “a patently unreasonable reading of the statute” and on “entirely or predominantly … irrelevant factors”.

Score one point for common sense over absurdity.  With any luck, no more public resources will be consumed addressing this nonsensical premise.

Robert Smithson is a partner at Pushor Mitchell LLP in Kelowna practicing exclusively in the area of labour and employment law.  For more information about his practice, or to view past Legal Ease columns, log onto www.pushormitchell.com. This subject matter is provided for general informational purposes only and is not intended to be relied upon as legal advice.