Earlier this year a regulation came into force artificially limiting the recoverable disbursements in many motor vehicle actions to 6% of the damages. The government made little effort in disguising that this rule was brought in to save a single litigant money, namely ICBC.
In one of the first judicial comments on the regulation the Court noted that this rule places a disproportionate burden on plaintiff’s in proving their claims.
In today’s case (Zhang v. Scrott) the Plaintiff was injured in a 2018 collision (predating the retroactive regulation) and sued for damages. In advancing his claim the Plaintiff noted his disbursements may exceed the 6% cap. The Defendant applied for a defence medical exam. The Plaintiff argued this should be denied because if granted the plaintiff may need responsive evidence which would then result in further disbursements beyond the recoverable cap.
The Court, while granting the application, noted with a more fulsome record a litigant may succeed in arguing that the cap “upsets the balance of fairness and equality. In an appropriate case, it might be argued that the limit on recoverable disbursements weighs against an additional IME by the defence.”
In granting the application but noting the regulation’s disproportionate burden Master Elwood provided the following reasons: