Publication date: Jul 10, 2022 • 5 hours ago • 4 min read • 14 comments The BC Supreme Court has struck down as unconstitutional the provincial government’s second attempt to save ICBC legal costs by limiting the costs that successful plaintiffs could recover for experts in personal injury lawsuits. Photo by Gerry Kahrmann /PNG

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The BC Supreme Court has struck down as unconstitutional the provincial government’s second attempt to save ICBC legal fees by limiting the costs that successful plaintiffs could recover for experts in personal injury lawsuits.

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In a ruling to be released Monday, Judge Nathan Smith said the contested regulation was flawed in the same way as the previously rejected rule, “degrades and diminishes the role of the court and violates a core of the court’s jurisdiction to review his process”. “The impact of the regulation at issue on individual plaintiffs will obviously vary according to each plaintiff’s circumstances and the issues in each case,” Smith concluded in the 30-page decision. “However, I am satisfied, on the evidence and on those aspects of the civil action system of which I am entitled to judicial notice, that the impugned regulation, in its present form, will prevent or discourage some claimants from having access to the court to decide on the merits of their case. Some claimants will not be able to gather all the evidence necessary to prove all aspects of their case without sacrificing other reasonable costs or necessary portions of their damages. Others may have the evidence in the form of the necessary expert reports, but will not be able to proceed to trial because of the additional costs and risks associated with the testimony of these experts.”

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The law allowed the successful plaintiff to recover a maximum of six percent of the damages they won or the settlement, subject to certain specific exceptions, for costs and expert fees. “The regulation at issue only applies to personal injury lawsuits arising from motor vehicle accidents (although amendments to the enabling law would allow it to be extended to other personal injury cases),” Smith noted. “Therefore, I cannot ignore the reality that the impugned regulation operates for the direct 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 thereby reduce the cost of litigation and produce lower damage awards either through settlement or at trial.”

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The justice emphasized, however, that expert evidence was vital to personal injury law because a plaintiff must prove the existence of an injury or injuries, establish cause as well as current and future effects, which require proof of specialists. Thousands of cases are affected, said Kelowna lawyer Bill Dick, president of the Trial Lawyers Association of BC, about 1,400 legal professionals behind the dispute and the recent constitutional challenge to the no-fault health care provisions that came into force on May 1. , 2021. “The regulation will likely have the greatest impact on cases decided at trial or settled shortly before trial, and that, in those cases, the most significant disbursements are typically fees charged by physicians and other expert witnesses for opinion reports and their depositions,” said Dick. Sunday.

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Two separate cases came before the court. The first involved Thi Sau Le, a 77-year-old retiree who claimed she was hit by three vehicles while trying to cross Victoria Drive in Vancouver on January 3, 2020. Her case required expert evidence significantly in excess of 6% of damages. It took as many as eight different medical or therapeutic specialties, disbursements for an accident repair mechanic and, because he is not fluent in English, an interpreter. In the second, plaintiff Bong Wong Kim settled on March 23, 2021 — about six weeks after the regulation went into effect, and even though 99 percent of his disbursements were made up front, it still applies to him. The controversial amendment to the Evidence Act and the regulation it passed was Attorney General David Eby’s response to a 2019 ruling by Chief Justice Christopher Hinkson, which overturned his first attempt to limit ICBC’s legal costs.

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Hinkson flagged the illegal changes to the Supreme Court’s Civil Rules that limited each party to three experts on damages. The chief justice found that the changes breached the court’s core jurisdiction by limiting its ability to hear necessary evidence, and that flaw was not cured by giving judges the power to appoint experts. “This, in a way, is indicative of how far Eby is willing to go to create injustice in a litigation system for injured people who are themselves financially compromised and disabled and perpetuates and reinforces that,” Dick remarked of the favourite, but undeclared, candidate for retirement Prime Minister John Horgan. “The legislation and regulation we were challenging was poorly designed. … They were wrong again. This came about because of Eby’s desire to put out the ICBC fire. But in the last two years — and I don’t know if people are aware of it that much — in 2020 ICBC had $1 billion in net profit, in 2021 it’s $1.5 billion… ICBC is making huge profits again.”

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The court was told in 2019, ICBC settled nearly 24,000 claims — the vast majority for $100,000 or less. In 72 percent, claimant payouts were six percent or less. In cases where the award was over $1 million, a cap of six percent would be sufficient in 75 percent of cases. However, disbursements exceeded six percent of the award or settlement in about two-thirds of the cases where plaintiffs received between $100,000 and $1 million. “I don’t know what the practical effect will be,” said Dick. “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’s an open question.” The Crown corporation referred questions to the government. A spokesman for Public Safety Minister Mike Farnworth, now in charge of ICBC, said the attorney general’s office would respond, but no comment was received by deadline. [email protected] twitter.com/ianmulgrew

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