Last year BC’s Attorney General introduced court rule changes creating a hard cap on how many experts individuals could present when prosecuting an injury claim in BC Supreme Court. It was designed to save ICBC money at the expense of people seeking a fair trial. The rule changes were swiftly struck down as being unconstitutional.
This week the government is at it again. They have introduced Bill 9 titled the Evidence Amendment Act, 2020 looking to bring in similar restrictions.
Like last year’s unconstitutional rule the bill looks to limit litigants with vehicle injury claims to one expert in fast track cases and no more than three in non fast track cases. The key difference is the new bill allows the Court to permit “additional experts to be tendered” if there are areas others requiring opinion evidence not covered by other experts and that without additional evidence the applicant “would suffer prejudice disproportionate to the benefit of not increasing the complexity and cost of the proceeding.“. The lack of judicial discretion was fatal to last year’s rule and this change will presumably save this bill from suffering the same fate.
Bill 9 goes further however and also looks to restrict disbursements in an arbitrary fashion. Bill 9 retroactively limits the recovery of necessary expenses that were lawfully, properly and reasonably incurred in full compliance with existing rules. The Bill gives the Lieutenant Governor in Council the power to cap the amount of disbursements payable as a percentage of the total amount recovered in an action. The Government announced they want the percentage to be 5%.
This rule, if implemented, will force people fighting ICBC to not call the evidence they need to prove their case unless they want to be stuck with an unrecoverable bill. This is a slanted rule designed to favour ICBC. The rule does not look after the public’s needs and instead favours a corporate institutional litigant.
A constitutional challenge will likely be launched if the government follows through with this ill conceived rule.
The full text of Bill 9 at first reading is as follows: