The BC government says it plans to appeal a court ruling that strikes down a recently enacted regulation that limits the amount a claimant can be reimbursed for expert testimony and other expenses arising from motor vehicle accident claims. The regulation limits reimbursement of fees, such as those charged by experts, to 6% of either the total compensation awarded by the court or the amount agreed upon in a settlement. So if someone got $10,000 for a personal injury claim, ICBC – the government insurance monopoly – would only have to reimburse up to $600 in such fees (for things like medical opinions or accident reconstruction reports). Any costs above this amount will be borne by the claimant, effectively eating away at the award for damages received. The regulation was introduced as part of a series of legislative changes to reduce the government’s cost of motor vehicle legal claims and thereby reduce the cost of car insurance through ICBC. “We are clear that costly, lengthy legal battles have not worked for British Columbians injured in traffic accidents. That’s why we’ve made changes to reduce disproportionate expert reports, court costs and delays. We are appealing the court’s recent decision and will not be commenting further at this time,” Public Safety Secretary and Solicitor General Mike Farnworth told Glacier Media in an emailed statement through a spokesperson. The case was brought by Thi Sau Le, a 77-year-old retiree who claims he was hit by three vehicles on January 3, 2020. Le’s lawyers estimate that, due to the number of different injuries involved, experts in up to eight different medical or therapeutic specialties to prove her damages, costing more than $50,000 and thus “substantially exceeding” 6% of any damages award. As such, Le and the Trial Lawyers Association of BC petitioned the Supreme Court of BC arguing that the regulation was flawed on both administrative and constitutional grounds. The Honorable Justice Lynn Smith ultimately ruled, in a July 8 decision, that the regulation was inconsistent with the enabling statute, the Evidence Act as well as the Constitution Act and “is therefore of no force or effect.” Smith found that the case was similar to that where the government attempted to limit each party in a motor vehicle action to three experts on the issue of damages, with only one report from each expert. That arrangement was found to limit the court’s ability to hear evidence necessary to reach a decision, Smith noted, adding that the 6 percent rule was a direct response to the government no longer being able to limit experts. In evaluating the regulation on administrative grounds, Smith noted that the current statute gives the court discretion to allow the hiring of additional experts if doing so would result in serious prejudice. However, the regulation limiting compensation to 6% provides no such discretion and is held to be inconsistent with the Evidence Act. And, the regulation “creates an economic barrier or disincentive, and thus potential further prejudice, to litigants asking the court to exercise this discretion,” Smith wrote. Smith found further inconsistencies by noting that the regulation also denies recovery of the cost of having a liability expert present at trial. On constitutional grounds, Smith noted, the petitioners argued that the regulation impeded access to justice because it would limit a person’s ability to seek expert opinions because of costs — a matter the government freely concedes as an intended effect, Smith noted. “Some plaintiffs will not be able to gather all the evidence necessary to prove all aspects of their case without sacrificing other reasonable expenses or necessary portions of their damages,” Smith wrote. “Others may have the evidence in the form of the necessary expert reports, but will not be able to proceed to trial because of the additional costs and risks associated with having those experts testify.” Le and the association argued, Smith wrote, “that the regulation at issue abrogates that judicial power by creating situations where the evidence required by the court cannot realistically be offered because of the costs and risks imposed on the individual plaintiff.” Smith agreed. And so, like the regulation limiting experts, Smith held that the regulation imposing a cap on damages “degrades and diminishes the role of the court and encroaches on a key area of the court’s jurisdiction to control its process.” With the government’s decision to appeal to the BC Court of Appeal, this is now one of three pending court matters related to the government’s efforts to reduce litigation costs for ICBC. The others include challenges to a maximum compensation (compensation) and the use of administrative tribunals for claims. The government won the latest case at the BC Court of Appeal, but the union is seeking leave to appeal to the Supreme Court of Canada.
