Government Introduces Bill Retroactively Limiting Disbursements In Injury Claims

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:

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:

1 The Evidence Act, R.S.B.C. 1996, c. 124, is amended by adding the following sections:

Limitation on expert evidence in vehicle injury proceedings

12.1  (1) In this section and section 12.2:

“fast track vehicle injury proceeding” means a vehicle injury proceeding prescribed by regulation as a fast track vehicle injury proceeding;

“joint expert” means an expert that is jointly appointed by all parties to a vehicle injury proceeding;

“vehicle injury damages” means damages for personal injury, or death, resulting from the use or operation of a vehicle as defined in the Motor Vehicle Act;

“vehicle injury proceeding” means a civil proceeding in the Supreme Court that includes a claim for vehicle injury damages.

(2) Except as provided under this section or the regulations,

(a) a party to a vehicle injury proceeding, other than a fast track vehicle injury proceeding, must not tender the following at trial:

(i) expert evidence on the issue of vehicle injury damages, of more than 3 experts;

(ii) more than one report on the issue of vehicle injury damages from each expert referred to in subparagraph (i),

(b) a party to a fast track vehicle injury proceeding must not tender the following at trial:

(i) expert evidence on the issue of vehicle injury damages, of more than one expert;

(ii) more than one report on the issue of vehicle injury damages from the expert referred to in subparagraph (i), and

(c) the court must not allow a party to tender expert evidence at the trial of a vehicle injury proceeding if doing so would result in exceeding the limits set out in this subsection.

(3) Despite subsection (2), if the parties to a vehicle injury proceeding appoint a joint expert, a party may tender at trial the expert evidence of that joint expert.

(4) With the consent of all other parties to a vehicle injury proceeding, a party may tender at trial

(a) expert evidence of one or more additional experts, despite the limit set out in subsection (2) (a) (i) or (b) (i), or

(b) one or more additional reports from an expert referred to in subsection (2) (a) (i) or (b) (i) or paragraph (a) of this subsection, despite the limit set out in subsection (2) (a) (ii) or (b) (ii), as applicable.

(5) On application by a party to a vehicle injury proceeding, the court may, if satisfied that the conditions set out in subsection (6) are met, grant leave to

(a) allow expert evidence of one or more additional experts to be tendered, despite the limit set out in subsection (2) (a) (i) or (b) (i), or

(b) allow the party to tender as evidence one or more additional reports from an expert referred to in subsection (2) (a) (i) or (b) (i), (4) (a) or paragraph (a) of this subsection, despite the limit set out in subsection (2) (a) (ii) or (b) (ii), as applicable.

(6) The following are the conditions for the purposes of subsection (5):

(a) the subject matter of the additional evidence to be tendered is not already addressed by expert evidence permitted under subsection (2) or (4);

(b) without the additional expert evidence, the party making the application would suffer prejudice disproportionate to the benefit of not increasing the complexity and cost of the proceeding.

(7) In an application under subsection (5), a party must include the following:

(a) the name of each expert whose evidence the party intends to tender at trial;

(b) the scope of expertise of each expert whose evidence the party intends to tender at trial;

(c) records that support the need for the additional evidence.

(8) Nothing in this section limits any authority of the court to appoint the court’s own experts on the court’s own initiative.

(9) For the purposes of this section, the Lieutenant Governor in Council may make regulations as follows:

(a) respecting disbursements, including but not limited to the following:

(i) establishing limits on the amount of disbursements that are payable to a party in a vehicle injury proceeding, including, without limitation, establishing limits

(A) on the amount of disbursements payable for an expert report,

(B) on the amount of disbursements payable as a percentage of the total amount recovered in an action, and

(C) in relation to expert evidence by reference to the number of experts tendering evidence at a trial or the number of reports by experts tendered at trial;

(ii) authorizing the court to make an order

(A) for the amount of disbursements that are payable to a party in a vehicle injury proceeding in circumstances in which limits established under subparagraph (i) do not apply, or

(B) determining whether to include or exclude prescribed disbursements when determining the application of a limit established under subparagraph (i);

(b) respecting the following matters in relation to expert evidence on the issue of vehicle injury damages in a vehicle injury proceeding:

(i) the timelines for serving expert evidence;

(ii) the consequences of a party failing to serve expert evidence within a timeline prescribed under subparagraph (i), including but not limited to restricting the party from tendering the expert evidence at trial;

(c) for the purposes of the definition of “fast track vehicle injury proceeding”, prescribing as a fast track vehicle injury proceeding a proceeding that is governed by rules made under section 2 of the Court Rules Act;

(d) providing for exemptions from the application of subsection (2) or a regulation made under this section, including but not limited to regulations that

(i) establish circumstances in which the exemption applies, and

(ii) set conditions of, or limitations on, the application of the exemption.

(10) If a regulation made under subsection (9) (a) (i) or (b) (i) is inconsistent with a rule made under the Court Rules Act, the regulation under subsection (9) (a) (i) or (b) (i) prevails.

(11) In making a regulation under subsection (9), the Lieutenant Governor in Council may make regulations that are different for fast track vehicle injury proceedings and other vehicle injury proceedings.

Exception to application of limits in section 12.1

12.2  (1) In this section, “notice of trial” means a notice of trial under the Supreme Court Civil Rules.

(2) Despite section 12.1 and regulations made under that section, the limits set out in that section do not apply to the following:

(a) a report of an expert in respect of vehicle injury damages if the report was served

(i) before February 6, 2020, and

(ii) in accordance with all applicable rules of the Supreme Court Civil Rules;

(b) an action for which

(i) a notice of trial was filed and served before February 6, 2020, and

(ii) the trial date set out in the notice of trial, filed in relation to the vehicle injury proceeding, is before October 1, 2020.

(3) A regulation made under section 12.1 (9) (a) must not do the following:

(a) limit the disbursements payable to a party for amounts that the party necessarily or properly incurred before February 6, 2020 for reports from experts in respect of vehicle injury damages;

(b) limit disbursements payable in respect of a vehicle injury proceeding if

(i) the notice of trial was filed and served before February 6, 2020, and

(ii) the trial date set out in the notice of trial, filed in relation to the vehicle injury proceeding, is before October 1, 2020.

(4) Subsection (3) (a) does not prohibit the making of a regulation under section 12.1 (9) (a) that limits the total disbursements payable to a party by taking into account the disbursements referred to in subsection (3) (a) of this section.

(5) For certainty, this section and section 12.1 apply to all vehicle injury proceedings, whether or not the proceeding was commenced before the coming into force of those sections.

2 Section 12.1 is amended

(a) in subsection (1) by repealing the definitions of “fast track vehicle injury proceeding”, “joint expert”, “vehicle injury damages” and “vehicle injury proceeding”,

(b) in subsection (1) by adding the following definitions:

“fast track personal injury proceeding” means a personal injury proceeding prescribed by regulation as a fast track personal injury proceeding;

“joint expert” means an expert jointly appointed by all parties to a personal injury proceeding;

“personal injury damages” means damages for personal injury or death;

“personal injury proceeding” means a civil proceeding in the Supreme Court that includes a claim for personal injury damages. ,

(c) in subsections (2) to (5) and (9) by striking out “vehicle injury proceeding” wherever it appears and substituting “personal injury proceeding“,

(d) in subsections (2) and (9) by striking out “vehicle injury damages” wherever it appears and substituting “personal injury damages“,

(e) by adding the following subsection:

(2.1) The limits set out in subsection (2) do not apply to expert evidence that relates to personal injury damages resulting from prescribed circumstances. ,

(f) in subsection (9) by adding the following paragraph:

(e) prescribing circumstances for the purposes of subsection (2.1). , and

(g) by repealing subsection (11) and substituting the following:

(11) In making a regulation under subsection (9), the Lieutenant Governor in Council may make different regulations for

(a) different personal injury proceedings, and

(b) fast track personal injury proceedings.

3 Section 12.2 is amended

(a) by repealing subsection (1) and substituting the following:

(1) In this section:

“notice of trial” means a notice of trial under the Supreme Court Civil Rules;

“vehicle injury damages” means personal injury damages resulting from the use or operation of a vehicle as defined in the Motor Vehicle Act;

“vehicle injury proceeding” means a personal injury proceeding that includes a claim for vehicle injury damages. ,

(b) in subsection (3) (b) by striking out “vehicle injury proceeding” in both places and substituting “personal injury proceeding“, and

(c) in subsection (5) by striking out “vehicle injury proceedings” and substituting “personal injury proceedings“.

Commencement

4  This Act comes into force by regulation of the Lieutenant Governor in Council.