Court overturns B.C. government’s attempt to restrict expert reports in ICBC cases

The B.C. Supreme Court has shot down proposed changes that would have saved ICBC an estimated $400 million.

B.C. Supreme Court Chief Justice Christopher Hinkson ruled on Thursday that the B.C. government’s limits on expert reports was unconstitutional because it violated the powers of a court’s control over its processes.

In February, the provincial government announced changes to court rules restricting the use of expert reports in ICBC legal cases.

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Attorney General David Eby said the changes were aimed to stop what the province describes as “the disproportionate use of experts and expert reports” used in motor-vehicle-related court cases.

“I find that the impugned rule compromises and dilutes the role of the court, and encroaches upon a core area of the court’s jurisdiction to control its process,” Hinkson writes in the ruling.

“While I accept the submission of the Attorney General that the impugned rule does not prevent the court from receiving expert evidence entirely, I find that instead of leaving it to the litigants to meet their burden of proof by adducing the necessary evidence, it places a duty on the court to ensure that it has sufficient expert evidence before it determines a proceeding on its merits.”

The legal challenge was brought in part by the Trial Lawyers Association of British Columbia (TLABC), which argued that change would lead to unprecedented interference and was an attack on the “most grievously injured British Columbians.”

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“It is concerning to TLABC that the Attorney General, who is responsible for the administration of justice for all British Columbians, is forcing such severe restrictions on a victim’s right to prosecute her or his claim to the sole benefit of one party, ICBC,” reads a statement from TLABC sent in February.

The court decision is expected to have a substantial impact on the province’s bottom line. Eby said in February the changes could save as much as $400 million per year.

The provincial government says vehicle injury claims have increased by 43 per cent in the past five years and the increased use of experts has contributed to a 20 per cent increase in ICBC’s litigated injury settlements over the last year.

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“The issue of adversarial experts who take one side or another of a lawsuit has also been a problem facing jurisdictions across the common law world. In Australia and the United Kingdom they have tackled this issue very aggressively. Unfortunately the story is not true in B.C.,” Eby said in February.

The provincial government has built-in contingencies in the fiscal updates in case the courts would make this decision.

Experts and expert reports are used to address the issue of damages — such as wage loss, future wage loss, and future care — that can be used by each side of a motor vehicle dispute. Under the new rules, parties will be able to use one expert and report for claims less than $100,000 and up to three experts and reports for all other claims.

The courts are still looking at a TLABC challenge against the province’s change to cap settlements for soft-tissue injuries.