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Revolution has come to motor vehicle litigation in British Columbia. The most obvious example of this is the BC government's announcement that effective May 1, 2021, BC's motor vehicle insurance system will change to a "no-fault" model. Consistent with its overall aim of reining in motor vehicle litigation costs, the Province has also introduced legislation – Bill 9 – which limits the number of expert reports parties may rely upon and which also caps the amount of disbursements payable by the unsuccessful litigant in motor vehicle personal injury litigation.
Last year, BC's Attorney General announced a change to the BC Supreme Court Rules, Rule 11-8, which limited the number of expert reports litigants could rely upon in personal injury lawsuits arising from a motor vehicle collision.
Rule 11-8 was successfully challenged by the plaintiff's personal injury bar. In the decision Crowder v. British Columbia (Attorney General), 2019 BCSC 1824., Rule 11-8 was found unconstitutional because, as BC Supreme Court Chief Justice Christopher Hinkson wrote:
"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. 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."
In direct response to that setback the Province passed Bill 9. The new legislation limits the amount of expert evidence litigants can rely upon:
In fast-track motor vehicle litigation (cases where the likely damages award is less than $100,000), the parties are now limited to one expert report each on the issue of vehicle injury damages.
And in all other motor vehicle injury litigation, the parties are limited to three experts each on the issue of vehicle injury damages.
The key difference between Bill 9 and the defeated Rule 11-8 is that Bill 9 leaves a discretion with trial judges to allow additional experts to be tendered in circumstances where 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." It is yet to be seen how trial judges will exercise this discretion. It's too early to tell whether or not this residual discretion will save this legislation from a constitutional challenge similar to the one that led to the demise of Rule 11-8.
The new legislation also limits payment to the successful party for its disbursements. A "disbursement" is an expense incurred by a party in the lawsuit, and includes such expenses as postage, photocopying, and expert reports. Expert reports routinely cost in excess of $5,000. Under the new legislation, in motor vehicle cases, the maximum recoverable from the opposing litigant is $3,000 for the cost of each expert report. And disbursements are now generally limited to 5 per cent of the trial judgment or settlement amount.
One practical response from plaintiff's personal injury law firms to the limit on disbursements has been to require pre-payment for certain classes of records as a means of ensuring they will not be left unpaid for the cost of obtaining documents.
These recent changes are highly contentious, but the Province has shown resolve, as evidenced by its surprise announcement that it was moving to a no-fault system shortly after Rule 11-8 was defeated. It's too early to know whether Bill 9 will face a similar court challenge. In the wake of the announcement of "no-fault", the Province may have chastened its opponents such that they prefer the devil they know.
Originally published by Alexander Holburn, August 2020
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