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Limits on Expert Reports in BC Overturned

31-Oct-19

By Marika Cherkawsky

The cap set by the British Columbia government on the number of expert reports allowed in motor vehicle lawsuits has been ruled unconstitutional by the B.C. Supreme Court, as it violates the exclusive powers of a court to control its own processes.

By way of background, in early 2019, the British Columbia government enacted Rule 11-8 by Order in Council No. 40/2019 and Order in Council No. 131/2019. Rule 11-8 sets the following limits on the number of expert reports allowed in auto insurance lawsuits:

  • ICBC and plaintiff lawyers in automobile injury court cases are limited to only one expert each and one report each for fast-track claims valued less than $100,000, and
  • up to three experts and three reports each for all other claims.

The government’s decision was largely motivated as a way to save money, with some sources indicating ICBC suffering a $2.5 billion loss over the last two years due to rising claims and legal costs. The cap was projected to stabilize the loss to $50 million this fiscal year, ending March 31.

In the decision Crowder v. British Columbia (Attorney General), 2019 BCSC 1824, the petitioner, Gregory Crowder, who was rear-ended by a tractor trailer in 2017, argued that the limit on medical reports made it impossible for him to fully outline the scope of his injuries and the costs of future care. The Trial Lawyers Association of British Columbia also joined the case, arguing the government changes were a legal overreach. Among other arguments, the petitioners both sought a declaration that Rule 11-8 was unconstitutional. The B.C. Government argued in response that despite the limits, the new rules still enable a court to commission its own expert reports, and appoint joint expert reports should a judge require more information. In dismissing the government’s argument, Chief Justice Hinkson stated:

[171]     The rules respecting court-appointed and jointly appointed experts were already in the Rules before the impugned Rule was enacted. So, the “residual discretion” relied upon by the Attorney General in his submissions is not created or preserved by the impugned Rule. In other words, Rule 11-8 does not add anything to the rules of civil procedure; its effect is only to take away judicial discretion.

[172]     Instead, the impugned Rule places the court in a role in which it should not be placed. Transferring the responsibility of ensuring that there is relevant evidence upon which to decide the issues in a personal injury case from the parties to the court does, in my view, intrude upon what has, to date, been the core function of the court: to decide a case fairly upon the evidence adduced by the parties.

In conclusion, Chief Justice Hinkson held:

[196] I find that the impugned Rule infringes on the court’s core jurisdiction to control its process, because it restricts a core function of the court to decide a case fairly upon the evidence adduced by the parties. The effect of the impugned Rule is to require the court to play an investigatory function in place of its traditional non-adversarial role, contrary to the principle of party presentation.

Given the results of this decision, it appears that, to the extent Alberta was looking to B.C. for guidance as to how to streamline cases and reduce the number of expert involved, this search will continue.

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