BC Caps Expert Reports in Motor Vehicle Litigation

Update – The full text of the amended rules have been published.  These read as follows –
RULE 11-8 – EXPERTS IN VEHICLE ACTIONS
Definition
(1) In this rule, “vehicle action” means an action that includes a claim for damages for
personal injury, or death, that arises out of the use or operation of a vehicle as defined
in the Motor Vehicle Act.
Conflict
(2) This rule applies in the event of a conflict between this rule and another rule of these
Supreme Court Civil Rules, other than Rule 15-1.
Limitation on expert opinion evidence
(3) Except as provided under this rule, a party to a vehicle action may tender, at trial, only
the following as expert opinion evidence on the issue of damages arising from
personal injury or death:
(a) expert opinion evidence of up to 3 experts;
(b) one report from each expert referred to in paragraph (a).
Additional experts and reports by consent
(4) If all the parties to a vehicle action consent,
(a) the parties may tender expert opinion evidence of one or more additional
joint experts, appointed in accordance with Rule 11-3, in excess of the limit
set out in subrule (3) (a), or
(b) a party may tender as evidence one or more additional reports from an
expert referred to in subrule (3) (a), in excess of the limit set out in
subrule (3) (b).
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Additional experts and reports by application
(5) On application by a party to a vehicle action, the court may do any of the following if
the court is satisfied that it would further the object of these Supreme Court Civil
Rules:
(a) provide for expert opinion evidence of one or more additional experts, in
excess of the limit set out in subrule (3) (a), by
(i) ordering the parties to appoint a joint expert in accordance with Rule
11-3, or
(ii) appointing an expert under Rule 11-5;
(b) allow the party to tender as evidence one or more additional reports from an
expert referred to in subrule (3) (a), in excess of the limit set out in
subrule (3) (b).
Allowable responding reports
(6) The limits set out in subrule (3) do not apply to an expert or expert’s report, if a party
serves the expert’s report under Rule 11-6 (4) to respond to a report that was served
on the party within 126 days before the scheduled trial date.
Allowable supplementary reports
(7) The limit set out in subrule (3) (b) does not apply to a supplementary report required
under Rule 11-6 (5) or (6).
Limitation on disbursements for expert evidence
(8) In a vehicle action, only the following amounts may be allowed or awarded to a party
as disbursements for expert opinion evidence on the issue of damages arising from
personal injury or death:
(a) the amount incurred by the party for up to 3 expert reports, whether or not
the reports were tendered at trial, provided that each report was
(i) served in accordance with these Supreme Court Civil Rules, and
(ii) prepared by a different expert;
(b) the amount incurred by the party for
(i) a report allowed under subrule (4) or (5),
(ii) a report referred to in subrule (6) or (7), or
(iii) a report prepared by an expert appointed by the court under
Rule 11-5 (1);
(c) the amount incurred by the party for an expert to give testimony at trial in
relation to a report, referred to in paragraph (a) or (b), that was prepared by
the expert.
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Appointment of experts on initiative of the court
(9) Nothing in this rule prevents the court from appointing an expert on its own initiative
under Rule 11-5 (1).
Transition – application of rule
(10) Subject to subrule (11), this rule applies to all vehicle actions, whether or not a notice
of claim for the vehicle action was filed before the coming into force of this rule.
Transition – exceptions for existing vehicle actions
(11) The following exceptions apply in relation to a vehicle action for which a notice of
claim was filed before the coming into force of this subrule:
(a) the limits set out in subrule (3) do not apply to any report of an expert that
was served in accordance with these Supreme Court Civil Rules before the
coming into force of this subrule;
(b) the limits set out in subrule (8) do not apply to amounts that were
necessarily or properly incurred for expert opinion evidence before the
coming into force of this subrule.
5 Rule 15-1 is amended by adding the following subrule:
Application of Rule 11-8
(12.1) In a fast track action,
(a) Rule 11-8 (3) (a) is to be read as if the reference to “3 experts” were a
reference to “one expert”, and
(b) Rule 11-8 (8) (a) is to be read as follows:
(a) the amount incurred by the party for one expert report, whether or not
the report was tendered at trial, provided that the report was served in
accordance with these Supreme Court Civil Rules; .
SCHEDULE 2
1 Rule 9-7 (7.1) of the Supreme Court Civil Rules, B.C. Reg. 168/2009, is amended by
striking out “in relation to a vehicle action referred to in that rule”.
2 The heading to Rule 11-8 is repealed and the following substituted:
RULE 11-8 – EXPERT OPINION EVIDENCE ON DAMAGES FOR PERSONAL
INJURY OR DEATH .
3 Rule 11-8 (3) is amended by striking out “to a vehicle action” and substituting “in an
action”.
4 Rule 11-8 (4) is amended by striking out “to a vehicle action”.
5 Rule 11-8 (5) is amended by striking out “to a vehicle action”.
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6 Rule 11-8 (8) is amended by striking out “In a vehicle action” and substituting “In an
action”.
7 Rule 11-8 (10) is repealed and the following substituted:
Transition – application of rule
(10) Subject to subrules (11) and (12), this rule applies to all actions, whether or not a
notice of claim for the action was filed before the coming into force of this rule.
8 Rule 11-8 is amended by adding the following subrule:
Transition – exceptions for existing actions, other than vehicle actions
(12) The following exceptions apply in relation to an action, other than a vehicle action, for
which a notice of claim was filed before February 1, 2020:
(a) the limits set out in subrule (3) do not apply to any report of an expert that
was served in accordance with these Supreme Court Civil Rules before
February 1, 2020;
(b) the limits set out in subrule (8) do not apply to amounts that were
necessarily or properly incurred for expert opinion evidence before
February 1, 2020.
_______________________________________
Today BC’s Attorney General announced changes to the BC Supreme Court Rules which will limit how many expert witnesses litigants can use when prosecuting a personal injury lawsuit arising from a motor vehicle collision.
While the exact wording of the changes is not yet known the BC Government provided the following details in a press release this morning:
The proposed amendments will limit the number of experts and expert reports permitted to address the issue of damages, such as wage loss, future wage loss and future care that can be used by each side of a motor vehicle dispute. Parties will be able to use one expert and report for fast-track claims (e.g., less than $100,000), and up to three experts and reports for all other claims. However, the judiciary will be able to permit additional court-appointed or joint experts at its discretion.
These amendments will come into effect immediately upon deposit for motor vehicle-related actions. They will also apply to all personal injury claims as of Feb. 1, 2020, subject to the further analysis and consultation that the ministry plans to undertake. More information will be available in the coming weeks.
I will update this article with the actual rule changes once these are published.
While the limits on experts apply equally to both sides it is worth noting that if a plaintiff fails to call treating physicians ICBC can ask the court to draw an ‘adverse inference‘.  Plaintiff’s rarely enjoy this luxury unless ICBC hires an expert and then chooses not to disclose the report generated from the assessment.  Plaintiffs will be faced with the difficult choice of deciding whether to come to court with treating doctors (who often want nothing to do with litigation) vs doctors retained for medic0-legal purposes.  Defendants will not have to struggle with such a choice.

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If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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