Supreme Court of BC overturns limits on medical experts in cases

  • October 24, 2019

By Rob Shaw for The Vancouver Sun

B.C.’s New Democrat government is scrambling to deal with the ramifications of a court ruling that struck down a key part of its auto insurance reforms and could blow a hole in the provincial budget.

A cap set by Attorney General David Eby on the number of expert reports allowed in auto insurance lawsuits was unconstitutional because it violated the exclusive powers of a court to control its own processes, Chief Justice Christopher Hinkson of the B.C. Supreme Court ruled Thursday.

The immediate effect was an approximately $400 million financial hit for ICBC that Finance Minister Carole James has warned could swamp her thin $179-million projected budget surplus.

“It is difficult when we bring a big reform measure like this forward to lose in this way, and I won’t pretend it’s not, but that doesn’t mean we’re going to give up,” Eby told reporters Thursday. “We have a number of potential responses depending on the decision and we’re looking at it carefully to figure out how we’re going to go forward.”

The government could appeal the ruling or craft new legislation, said Eby.

The decision overturns cabinet orders made in February that limit ICBC and plaintiff lawyers in automobile injury court cases to only one expert each and one report each for fast-track claims valued less than $100,000, and up to three experts and three reports each for all other claims. Expert reports include those on medical conditions and lost wages.

The cap was billed as a way to save money. ICBC lost $2.5 billion during the past two years, due to rising claims and legal costs. Before the court ruling, it had been projected to stabilize to a $50 million loss this fiscal year, ending March 31.

“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,” Hinkson wrote in his ruling. “The effect of the impugned rule is to require the court to play an investigatory function in place of its traditional non-adversarial role.”

Eby said he’s confused as to why B.C. can’t mirror countries like the United Kingdom or Australia, where there are limits or outright bans on adversarial expert witnesses in auto insurance cases.

“My concern is that the decision has erected a constitutional fence around this broken system,” he said.

The court challenge was brought by B.C. driver Gregory Crowder, who was rear-ended by a tractor trailer in 2017, leaving with traumatic brain injuries, among other medical problems. He alleged the limit on medical reports would have made it impossible to fully outline the scope of his injuries and the lifetime of future medical care he requires.

B.C.’s Trial Lawyers Association — which represents personal injury lawyers opposed to government’s ICBC reforms — joined the case and called the government changes a legal overreach.

“It was an overreach in the sense it was unfair,” said Ron Nairne, president of the Trial Lawyers Association. “The more seriously injured a person is, the more they were harmed by this new rule.”

The court petition challenged the changes on three arguments.

First, it argued a convention that court rule changes must be approved by a rules committee that includes judges and lawyers. Hinkson said he could find no such convention.

In the second point, the challengers argued government used a cabinet order, which can only change “practice and procedure” for courts, not “the means by which particular facts may be proved.” Eby’s ministry tried to argue that cabinet orders already set rules on timelines for court reports. But Hinkson said the changes would require amending the Evidence Act.

The final argument centred on whether the government’s limits were unconstitutional.

Government argued the new rules still allow a court to commission its own expert reports, and appoint joint expert reports, if a judge feels the case needs more information.

Hinkson said found that “practically unworkable.”

“The impugned rule places the court in a role that it should not be placed in,” he wrote. “Transferring the responsibility of ensuring that there is relevant evidence upon which to decide the issues in a personal injury case from the parties to the court does, in my view, intrude upon what has, to date, been the core function of the court: to decide a case fairly upon the evidence adduced by the parties.”

The rule changes were part of larger reforms introduced earlier this year, including a cap of $5,500 on pain and suffering claims for minor injuries.

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