BCSC Decision by Mr. Justice Smith to strike down a BC Government Amendment to the Evidence Act that limited the Disbursements permitted by Accident Injury litigants only.

 

When did the government change the Evidence Act and what did they do?

 

In 2019, the BCSC found a rule limiting how many expert witnesses a personal injury litigant could rely on to be unconstitutional. After this loss, the BC Government took another kick at the can in 2020 and passed this regulation under the Evidence Act that said a personal injury litigant suing a bad driver in BC can only recover 6% of their total judgment or settlement for disbursements. Disbursements are mostly comprised of the cost to pay an expert witness to prepare a report and come to court to assist the judge in technical or complicated issues – it is usually neurologists, orthopedic surgeons, or accident reconstruction engineers.

 

For example, if your claim is $100,000 – that means you are limited to $6,000 for disbursements. As you can imagine, having a neurologist prepare a report, take time off work, and come to court to testify costs far more than $6,000. If the injured person has a head injury, a spinal cord injury, and broken bones, they are going to need several experts to testify. Especially if ICBC won’t admit the bad driver was at fault and the injured person has to prove that too with an accident reconstruction engineer.

 

ICBC can pay an injured person a fair settlement, but without a lawyer, evidence, and the threat of court or going before a judge, that never happened. Lawyers and trials made ICBC pay what they were supposed to, so ICBC has been trying to come up with new laws that limit people’s ability to get a fair payment for their damages.

 

What was the basis of the Court challenge?

 

The Court was asked if this new Evidence Act limitation was unconstitutional. Again, the rule was only limiting people injured in car accidents suing bad drivers for their losses. The bad drivers’ insurance company in BC is ICBC. ICBC is an arm of the BC Government and this law only benefitted them.

 

If the injured person won in court or is settled, the losing party (the bad driver) has to pay the cost of litigation. By limiting disbursements, ICBC limited the amount they had to pay on behalf of the bad driver as the losing party, and if the evidence the injured person needed to prove their case cost more than 6% of their claim, they either had to not get all the evidence they need or pay out of pocket for that evidence. The only person that benefits is ICBC – either the injured party can’t prove their case and ICBC pays them less for their losses. Or, the injured person gets the evidence they need but ICBC doesn’t have to repay the cost of the evidence, even though they forced the injured party to go to court and prove their case instead of paying them a fair settlement.

 

Why did the BCSC overturn the law?

 

The Court held that the changes to the Evidence Act stacked the Court system in ICBC’s favor. Justice Smith said this law was invalid on both administrative law and constitutional principles. First of all, the law only applied to people injured in motor vehicle accidents in BC with a claim against ICBC, so the law operates only for the immediate and primary benefit of ICBC.

 

Justice Smith said that this law was the same as the one struck down in 2019 where that Justice (Kent) held that the ‘thinly veiled purpose of this legislation is to improve the finances of ICBC by reducing the quantity of medical evidence which reduced litigation costs and lower damages awards. While this all may serve the best financial interests of the government and its crown corporation auto insurance monopoly, it makes it even more difficult for the Court to determine the nature and extent of a parson’s injuries and the appropriate medical care that is required in the future.’

 

The law also gave the court no discretion to permit exceptions if the injured person is successful, but if ICBC is successful it allowed the Court full discretion. The law wasn’t even applied equally and it created a financial barrier for injured people to provide the evidence they need to prove their claims. All this and so many more detailed and nuanced reasons make the law both unconstitutional and unsupported by administrative law.

 

What is the practical result of that for litigants?

 

People injured in car accidents before May 1, 2021, that were caused by bad drivers can now get the evidence they need to prove their losses in Court. Of course, the BC Government also brought no fault in as law so now people can’t make a claim at all against the bad driver after May 1, 2021 – and all the recovery benefits are limited in favour of ICBC too. Those challenges are just beginning and take time to get through the courts.

 

What will the BC Government (ICBC) do now?

 

They will likely appeal the Decision to the BCCA and eventually it will make its way to the Supreme Court of Canada. The BC government has 30 days to file the notice of appeal so I expect that will be coming shortly and the Court will have to decide what to do with the law in the meantime – suspend it or keep it active pending appeal.

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