B.C. Attorney General won’t appeal court’s ruling on expert cap in motor vehicle accident cases

The B.C. government will not appeal a decision by the province’s Supreme Court which struck down changes to the rules of court which placed a limit on adversarial, expert witnesses in motor vehicle accident cases.

The changes to the B.C. Supreme Court Civil Rules Regulation included limiting the number of adversarial expert reports to one report on personal injury claims under $100,000 and a maximum of three reports for all other cases. The judge would also have the discretion to permit additional court-appointed experts or experts jointly appointed by the disputing parties. In Crowder v. British Columbia (Attorney General), an injured plaintiff and the Trial Lawyers Association of British Columbia successfully challenged the constitutionality of those changes.

“The problem with the impugned rule was that it eliminated entirely the court’s inherent jurisdiction to control its own processes,” says John Rice, partner at Rice Harbut Elliott LLP, who acted for the petitioner Gregory Crowder.

In his announcement Wednesday that the government would not appeal the Supreme Court’s decision, B.C. Attorney General David Eby detailed the issues within the system his government had tried to address with the impugned rules change. He said there was a widely recognized and “problematic phenomenon” of lawyers “case building” using experts, and that the “expensive and excessive” use of expert reports placed an increasingly heavy financial burden on litigants, the justice system and Insurance Corporation of British Columbia. He also mentioned that experts used by both plaintiffs and defence are routinely exposed in media reports for “problematic practices,” which erodes public confidence in the system.

According to a provincial government press release from February, vehicle injury claims had increased by 43 per cent in five years and the increased use of experts had added 20 per cent to the Insurance Corporation of British Columbia’s litigated injury settlements over the previous twelve months.

“Our odds of a stay of the effect of this decision while legal arguments are made on appeal, likely all the way to the Supreme Court of Canada, are low. This would prevent us from taking action that would address this issue until years down the road,” Eby said.

Alternatively, the attorney general said his government plans to introduce legislative changes to the Evidence Act in the spring, which will limit adversarial expert reports but include “narrow judicial discretion” to allow additional experts.

Crowder v. British Columbia (Attorney General) stemmed from the injury of Gregory Crowder, who’s stopped vehicle was struck by a fuel truck travelling full-speed on a highway in the Kootenays. He suffered a brain injury, a fractured orbital bone, broken ribs, several soft tissue injuries, psychiatric injuries, neurological injuries and chronic pain, says Rice. Aside from unconstitutionality, the problem with a limit of three experts is that those like Crowder are injured in so many different areas that all the specializations necessary to adequately describe all the harms and losses cannot be contained in only three doctors, he says.

“It visits the most significant prejudice on the most severely injured claimants,” says Rice. “…you need different experts to be able to speak to different injuries and provide different diagnoses and prognosis and treatment recommendations.”

Rice adds that the status quo already allowed plenty of room to limit the use of experts.

“In in cases all the time, judges strike down evidence or refuse to hear evidence from one expert or find the expert to be unqualified or that the evidence is duplicative. So, there's already significant mechanisms in place for a trial judge to limit or narrow the evidence that the court will hear,” he says.

Crowder v. British Columbia (Attorney General) was heard by Chief Justice of B.C.’s Supreme Court Christopher Hinkson, who released the decision Oct. 24. Hinkson found the rules attempted to eliminate the court’s inherent jurisdiction to allow more evidence, which was contrary to s. 96 of the Constitution Act of 1867.

Rice says the aspect of the rules which allowed the judge to appoint court-appointed experts also altered the role of the court, having judges become involved in the preliminary stages of litigation and choosing which evidence the court would hear, as opposed to simply hearing and adjudicating that evidence.

“There's no question that reforms are needed to our rules of court to make the system fairer, faster and cheaper. But it should be done in a balanced and proportional way,” he says.

Counsel for the Attorney General Jacqueline Hughes declined Canadian Lawyer’s request for comment.