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“The thinly veiled purpose of this legislation is to improve ICBC’s finances by reducing the amount of expert evidence in motor vehicle accident liability claims and thereby reduce litigation costs and result in lower damages awards, whether or not by agreement or at trial.” — Judge Nathan Smith
Publication date:
July 10, 2022 • 5 hours ago • 4 minutes read • 14 comments The British Columbia Supreme Court has struck down as unconstitutional the provincial government’s second attempt to save ICBC legal costs by capping the costs that successful claimants can recover for experts on personal injury cases. Photo by Gerry Kahrmann /PNG
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The British Columbia Supreme Court has struck down as unconstitutional the provincial government’s second attempt to save ICBC legal costs by capping the costs that successful claimants can recover for experts in personal injury cases.
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In a ruling to be released Monday, Judge Nathan Smith said the disputed regulation was flawed in the same way as the previously rejected rule, that it “compromises and dilutes the court’s role and invades a core area of the court’s jurisdiction to control its process .”
“The impact of the challenged regulation on individual claimants will obviously vary depending on each claimant’s circumstances and the issues in each case,” Smith concluded in the 30-page ruling.
“But I am satisfied, on the evidence and on those aspects of the civil litigation system which I am entitled to take judicial notice of, that the impugned ordinance, in its present form, will prevent or discourage some claimants from obtaining access to a court for a resolution of their case on the merits. Some plaintiffs will not be able to gather all the evidence necessary to prove all aspects of their case without sacrificing other reasonable costs or necessary portions of their compensatory damages. Others may have the evidence in the form of required expert reports, but will not be able to proceed to trial because of the additional costs and risks associated with the testimony of these experts.
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The law allows a successful plaintiff to recover up to six percent of the award or settlement award, subject to certain specific exceptions, for costs and expenses of expert evidence.
“The challenged ordinance applies only to personal injury claims arising out of motor vehicle accidents (although amendments to the enabling statute would allow its extension to other personal injury cases,” Smith noted).
“Therefore, I cannot ignore the fact that the contested regulation operates to the immediate and primary benefit of ICBC. The thinly veiled purpose of this legislation is to improve ICBC’s finances by reducing the amount of expert evidence in motor vehicle accident liability claims and thereby reduce litigation costs and result in lower damage awards, whether through settlement or during litigation.
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However, the judge stressed that expert evidence is crucial in personal injury law, as a claimant must prove the existence of an injury or injuries, establish cause, and present and future consequences, all of which require expert evidence.
Thousands of cases are involved, said Kelowna lawyer Bill Dick, president of the Trial Lawyers Association of British Columbia, about 1,400 lawyers behind the litigation and the recent constitutional challenge to the care provisions of the no-fault insurance scheme, which went into effect on May 1, 2021
“The regulation is likely to have the greatest impact on cases decided at trial or settled shortly before trial, and that in those cases the most significant payments are typically fees charged to medical and other expert witnesses for their reports and testimony,” said Dick Sunday.
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Two separate cases were filed in court.
The first involves Thi Sau Le, a 77-year-old retiree who claims she was hit by three vehicles while trying to cross Victoria Drive in Vancouver on January 3, 2020. Her case required expert evidence well in excess of the six percent of the damage.
As many as eight different medical or therapeutic specialties were required, payments for a crash recovery engineer and, because she did not speak English, an interpreter.
In the second, plaintiff Bong Wong Kim settled on March 23, 2021 – about six weeks after the regulation took effect, and although 99 percent of his payments were made in advance, it still applies to him.
The contested amendment to the Evidence Act and the regulation it authorized were Attorney General David Eby’s response to a 2019 ruling by Supreme Court Chief Justice Christopher Hinkson that overturned his first attempt to limit ICBC’s legal costs.
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Hinkson pointed to illegal changes to the Supreme Court’s Civil Rules that limit each party to three expert damages witnesses.
The Chief Justice found that the changes violated the court’s core jurisdiction by limiting its ability to hear necessary evidence, and that defect was not cured by giving judges the power to appoint experts.
“It’s kind of illustrative of how far Eby is willing to go in creating injustice in a justice system for injured people who are themselves economically disadvantaged and disabled, and he perpetuates and reinforces that,” Dick noted of the favorite, but undeclared candidate for retired premier John Horgan.
“The legislation and ordinance we challenged were ill-conceived. … They were wrong again. This happened because of Eby’s desire to put out the ICBC dumpster fire. But in the last two years – and I don’t know if people even realize it – in 2020 ICBC made $1 billion in net profit, in 2021 they made $1.5 billion … ICBC is making huge profits again.”
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The court was told in 2019 that ICBC settled almost 24,000 claims – the majority involving $100,000 or less.
In 72 percent, the claimant’s payments were equal to or less than six percent; In cases where the award was either over $1 million, a cap of six percent would be sufficient 75 percent of the time.
However, payouts exceeded six percent of the award or settlement in roughly two-thirds of the cases where plaintiffs received between $100,000 and $1 million.
“I don’t know what the practical effect will be,” said Dick. “We do not yet have a position from the government and we do not have a legal opinion on what practical impact this decision will have on already settled claims.” That’s an open question.”
The Crown corporation referred questions to the government.
A spokesman for Public Safety Minister Mike Farnworth, who is now in charge of ICBC, said the attorney general’s office would respond, but no comment had been received by deadline.
imulgrew@postmedia.com
twitter.com/ianmulgrew
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