Supreme Court Declares BC Government’s Limits on Expert Reports Unconstitutional

People injured in car accidents must generally get an opinion from one or more “experts” in order to prove their claims. These opinions most often come from doctors although they can also come from other professionals such as occupational therapists and economists. These opinions must be written down in the form of an expert report.

The type and number of experts needed varies from case to case and depends in large measure on the injuries and losses the person has suffered. For instance, a person who suffers a broken bone will likely need an opinion from an orthopaedic surgeon. A person with a brain injury will likely require the opinion of a neurologist. Someone suffering from depression or PTSD will need an opinion from a psychiatrist. While it would be nice if a single doctor could give an opinion on all of a person’s injuries, ICBC, on the one hand, tends to not put much weight on reports written by family doctors (even if they did, not everyone has a family doctor). On the other hand, ICBC frequently argues that specialists are not qualified to give opinions outside their specific area of expertise. For that reason, a person suffering from multiple different kinds of injuries has to get opinions from multiple doctors if they stand a chance of fully proving their claims.

Until recently, there has never been a hard limit on the number of expert reports a person could tender at trial.

That all changed on February 11, 2019 when the BC Government changed the rules of the Supreme Court to limit the number of expert reports an injured person could rely on at trial. This change was done without warning and, for the first time ever, without having been recommended by the committee of judges and lawyers that oversee the rules of court. These changes were implemented by the Attorney-General who made it abundantly clear that the only reason for the limit was to save ICBC money. As an ICBC representative confirmed, half the expected savings would be “due to lower payments for damages – more expert reports make claims more expensive.” That’s another way of saying the limits were expected to prevent injured people from fully proving their case and, as a result, being fully compensated for their losses.

This was an unprecedented move. Never before had an Attorney General (who just happens to also be the Minister Responsible for ICBC) interceded to change the Rules of Court to favour a single institutional litigant, ICBC, to the detriment of innocent, injured people.

It didn’t take long for such an injured person to challenge the legality and constitutionality of these rule changes. That challenge was heard by the Chief Justice of the BC Supreme Court this summer.

In Reasons for Judgment indexed as Crowder v. British Columbia (Attorney General), 2019 BCSC 1824 and released at the end of October, the Chief Justice agreed that the magnitude of the changes were not authorized by the Court Rules Act, stating that:

[120]     I find that the effect of the impugned Rule is to change the substantive law of evidence that has guided this Court from its inception, and I find that this is not one of the exceptional cases referred to by Justice Lambert where the Rules may create new substantive law. Accordingly, I find that the Rule 11-8 Orders (and with it, the impugned Rule) are not authorized by the Act.

Furthermore, he determined that the limits infringed upon the core jurisdiction of the court and were, therefore, unconstitutional:

[196]     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 in place of its traditional non-adversarial role, contrary to the principle of party presentation.

As a result, the Chief Justice declared the limits to be invalid and of no force or effect.

Before concluding, another stated reason for the limits on expert reports was that it would save ICBC from having to pay the cost of those reports when they settle a claim or lose at trial. However, ICBC has always had the ability to challenge having to pay for such reports and the Court has always had discretion to disallow some or all of the cost of an expert report if it determines the report shouldn’t have been procured or cost too much.

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