Justice strikes down B.C. limit on recoverable costs after vehicle collision

Click to play video: 'Judge rules cap on expert testimony in ICBC claims ‘unconstitutional’'
Judge rules cap on expert testimony in ICBC claims ‘unconstitutional’
The provincial government is considering its options tonight - now that a judge has struck down changes to ICBC. The changes were meant to limit costs but they've been ruled unconstitutional. Catherine Urquhart now with what this all means for tens of thousands of other personal injury claims – Jul 12, 2022

A regulation that limits the amount of money a successful plaintiff can recover in a personal injury lawsuit after a vehicle incident has been struck down as unconstitutional in British Columbia.

In a decision released this month, Justice Nathan Smith found the “thinly veiled purpose” of the legislation is to improve ICBC’s finances by reducing the quantity of expert evidence in liability claims.

It serves to “reduce litigation costs and produce lower damage awards” through settlements or at trial, Smith wrote, operating in the “immediate and primary benefit” of ICBC.

“While all of this may serve the best financial interests of the government and its Crown corporation auto insurance monopoly, it makes more challenging the already difficult task of the Court in determining the nature and extent of the plaintiff’s injuries and the appropriate medical treatment that might be required in the future,” reads the July 8 decision.

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The province’s Disbursements and Expert Evidence Regulation was brought into force under the B.C. Evidence Act. It caps the funds — or disbursements — a successful plaintiff can recover for expenses and the costs of expert evidence to either six per cent of the damages awarded by the court or the amount agreed to in a settlement, with some exceptions.

The petition to overturn the regulation was brought forward by two B.C. residents who were involved in motor vehicle incidents, along with the Trial Lawyers Association of B.C.

Thi Sau Le, 77, alleged she was struck by three vehicles in Vancouver in January 2020. Her lawyers believed the cost of assembling the expert evidence needed to prove all of her injuries and their impact on her would be well over the six-per-cent cap.

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The B.C. government is named as the respondent in the petition. In a Tuesday interview, Public Safety Minister Mike Farnworth said the court decision is “under review by the attorney general’s ministry with a view to potentially appealing it.”

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“As we know, right now we are in a significantly volatile financial situation not just in British Columbia, but right across the country and indeed, globally,” he said. “ICBC’s role is to ensure that it operates in as financially sound a position as possible and we want to make sure we have the best insurance rates we can deliver and that’s what ICBC’s primary job is.”

Farnworth touted several changes announced in 2020, including reduced rates and increased medical and rehabilitation benefits.

Attorney General David Eby has previously said, “Unlimited adversarial experts all paid for by ICBC by you and me through our car insurance, are just one more example of spending by car insurance premiums that does not advance any interest.”

Bill Dick, president of the trial lawyers group, said the case was about the principle of an “equal playing field” in court. In the association’s view, he said the B.C. government created an “unfairness” in its legislation for the plaintiffs.

“The court in this case, after hearing arguments, ultimately struck it down being unconstitutional because it took away the ability of courts to fairly adjudicate matters,” he explained, “and it created an economic barrier for injured plaintiffs to proceed to trial or to pursue all of their claims that they wanted to pursue.”

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The decision could still be appealed. The plaintiffs have 30 days to make written submissions on the costs of Smith’s reasons, and the respondents can reply within two weeks after those are received.

Editor’s Note: A previous headline in this story incorrectly stated that the limit struck down dealt with compensation. In fact, it deals with recoverable costs for expenses and expert evidence. Global News regrets the error. 

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