“The thinly veiled purpose of this legislation is to improve ICBC’s finances by reducing the amount of expert evidence in automobile accident liability claims and thereby reducing the costs of litigation and producing lower damage awards, since either through a settlement or at trial. — Judge Nathan Smith
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The Supreme Court of British Columbia has declared the provincial government’s second attempt to save ICBC litigation costs unconstitutional by limiting the costs that successful plaintiffs could recover for experts in personal injury claims.
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In a decision to be published Monday, Judge Nathan Smith said the challenged regulation was flawed in the same way as the previously rejected rule, “it compromises and dilutes the role of the court and encroaches on a core area of the court’s jurisdiction.” to control your process.”
“The impact of the challenged regulation on individual plaintiffs will obviously vary depending on the circumstances of each plaintiff and the issues in each case,” Smith concluded in the 30-page ruling.
“But I am convinced, based on the evidence and those aspects of the civil litigation system that I have a right to hear in court, that the challenged regulation, in its current form, will prevent or deter some plaintiffs from accessing justice. ”. court for a decision of your case on its merits. 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 compensatory damages. Others may have the evidence in the form of the necessary expert reports, but will not be able to proceed to trial due to the additional costs and risks associated with the testimony of those experts.”
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The law allowed a successful plaintiff to recover no more than six percent of the damages won or settlement, subject to some specific exceptions, for expenses and costs of expert evidence.
“The challenged regulation applies only to personal injury actions arising from automobile accidents (although the amendments to the enabling statute would allow its extension to other personal injury cases),” Smith said.
“Thus, I cannot ignore the reality that the challenged 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 car accident liability claims and thus reducing the costs of litigation and producing lower damage awards, either through a settlement or at trial.
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The judge emphasized, however, that expert evidence was crucial in personal injury law because the plaintiff must prove that the injury(s) exist, establish the cause and current and future impact, all of which require expert evidence.
Thousands of cases are affected, said Kelowna attorney Bill Dick, president of the BC Trial Lawyers Association, about 1,400 legal professionals behind the litigation and recent constitutional challenge to care provisions of the no-fault insurance scheme that It entered into force on May 1. , 2021.
“Regulation is likely to have the greatest impact in cases decided at trial or settled shortly before trial, and in those cases the most significant outlays are often the fees charged by physicians and other expert witnesses for their opinion reports and testimony,” Dick said. Sunday.
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Two individual cases were before the court.
The first involved Thi Sau Le, a 77-year-old retiree who alleged she was struck by three vehicles while attempting to cross Victoria Drive in Vancouver on January 3, 2020. Her case required expert evidence that significantly exceeded six percent of the damage.
It took as many as eight different medical or therapeutic specialties, outlays for an accident reconstruction engineer and, because he is not proficient in English, an interpreter.
In the second, plaintiff Bong Wong Kim settled on March 23, 2021, some six weeks after the regulation took effect, and although 99 percent of his disbursements were made in advance, he was still charged. .
The challenged Evidence Act amendment and the regulation it authorized were Attorney General David Eby’s response to a 2019 decision by Chief Justice Christopher Hinkson that struck down his first attempt to cap ICBC’s litigation costs.
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Hinkson ruled out illegal changes to the Supreme Court’s Civil Rules that limited each party to three damages expert witnesses.
The chief justice of the Supreme Court considered that the changes infringed the central jurisdiction of the court by limiting its ability to hear the necessary evidence, and that defect was not remedied by giving judges the power to appoint experts.
“This, in a way, is illustrative of how far Eby is willing to go to create injustice in a litigation system for injured people who are financially compromised and disabled, and he’s perpetuating and improving it,” Dick said of the favorite, but not declared, candidate to withdraw from the job of Prime Minister John Horgan.
“The legislation and regulation that we were challenging were ill-conceived. … They were wrong again. This came about due to Eby’s desire to put out the ICBC container fire. But in the last two years, and I don’t know if people are that aware of it, in 2020 ICBC made $1 billion in net profit, in 2021 it made $1.5 billion… ICBC is making huge profits again.” .
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The court was told that in 2019 ICBC settled nearly 24,000 claims, the vast majority for $100,000 or less.
In 72 percent, the plaintiff’s disbursements were for an amount equal to or less than six percent; In cases where the award exceeded $1 million, a six percent cap would have sufficed in 75 percent of the cases.
However, disbursements exceeded six percent of the award or settlement in approximately two-thirds of the cases in which the claimants received between $100,000 and $1 million.
“I don’t know what the practical effect will be,” Dick said. “We do not yet have a position from the government and we do not have a legal opinion on what the practical impact of this decision will be on previously settled claims. It is an open question”.
The Crown corporation referred the questions to the government.
A spokesman for Public Safety Minister Mike Farnworth, now head of ICBC, said the attorney general’s office would respond, but no comment was received before the deadline.
