A province’s second effort to limit auto trial experts is enacted into law

Stymied by a B.C. Supreme Court ruling last year in Crowder v. British Columbia (Attorney General), B.C.’s attorney general is attempting once again to change court rules to limit expert evidence in vehicle court actions – a move that is similarly facing a constitutional challenge from the province’s trial lawyers.

Bill 9, which received Royal Assent July 8, 2020, seeks to change the province’s Evidence Act to include:

• a limit of three experts per party at trial in vehicle injury claims, other than Rule 15-1 Fast-Track proceedings;
• a limit of one expert per party at trial in vehicle injury claims in Rule 15-1 Fast-Track proceedings;
• required consent of the parties or a court order to tender additional expert evidence at trial; and
• limits on disbursements payable to a party, including the amount per expert report and the amount payable as a percentage of the total amount recovered in the action.

On the last point, in an online blog posted on Mondaq, Raman Johal of Clark Wilson LLP noted that B.C.’s attorney general had previously announced a proposed limit of $3,000 per report, with a 5% percentage cap on the total damages recovered in the action.

Commenting on Bill 9 in general, “as a result of these limits on expert evidence and the associated limits on recoverable disbursements, a party to a vehicle injury claim can no longer have the expectation that all costs associated with their retention of experts will be recovered from the unsuccessful party,” Johal wrote. “For our insurer clients, we hope this will affect the length and expense associated with vehicle injury trials after Oct. 1, 2020.”

Bill 9’s limits are very similar to what was contained in Rule 11-8 of the Supreme Court Civil Rules, a law that the province enacted in February 2019 and struck down as unconstitutional in October 2019.

In Rule 11-8, the government stipulated that “a party to a vehicle action may tender, at trial, only the following as expert opinion evidence on the issue of damages arising from personal injury or death: (a) expert opinion evidence of up to three experts; and (b) one report from each expert referred to in paragraph (a).” Rule 11-8 also sought limits on disbursements for the reports in court awards.

B.C. Supreme Court Chief Justice Christopher Hinkson found in October 2019 that Rule 11-8 was unconstitutional.

“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,” Hinkson wrote. “The effect of the impugned rule is to require the court to play an investigatory function [i.e. the court would have to work with the parties’ counsel to plan or identify needed evidence] in place of its traditional non-adversarial role, contrary to the principle of party presentation.”

The chief justice made no comment on whether Rule 11-8 restricted access to justice, having found the law to be unconstitutional on other grounds.

Bill 9 sought to address the chief justice’s criticisms of Rule 11-8. But trial lawyers have served notice of their intent to challenge the revised version as well.

“The key difference is [Bill 9] allows the court to permit ‘additional experts to be tendered’ if there are areas…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,’” personal injury lawyer Erik Magraken wrote for B.C. Injury Law Blog. “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.”

However, Magraken goes on to suggest, Bill 9’s approach to expenses may wind up engaging the access to justice argument.

The new bill “will force people fighting ICBC [the Insurance Corporation of B.C.] to not call the evidence they need to prove their case unless they want to be stuck with an unrecoverable bill,” Magraken contends. “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.”