Recently amended regulations cap disbursements at six percent of the total damages
The BC Supreme Court has dismissed an application by a plaintiff seeking to have certain disbursements excluded under the Disbursements and Expert Evidence Regulation.
The plaintiff’s application in Garcia v Gill, 2024 BCSC 108 was dismissed due to insufficient evidence. The regulation, which was amended to come into effect on November 27, 2023, aims to cap disbursements at six percent of a plaintiff’s total damages following trial or settlement and requires plaintiffs to bring applications to have disbursements excluded from the cap before the disbursement is incurred.
The plaintiff was involved in two motor vehicle accidents in 2018. She claimed to have suffered multiple physical injuries, including to her neck, shoulders, back, hips and leg, as well as headaches. She has also developed psychological injuries following the accidents, including driving anxiety, generalized anxiety and depression. She disclosed that her injuries have affected all aspects of her life, including her ability to work.
In her application before the BC Supreme Court, she sought to exclude costs related to medical assessments and reports, trial preparation, and trial attendance by two doctors. However, the court found a lack of necessary evidence to support the application, particularly regarding the anticipated costs of these disbursements and the total amount of disbursements intended to be incurred by the plaintiff.
The plaintiff asked the court to take judicial notice that the cost of a typical medical report exceeds $5,000 and that expert medical evidence, including trial attendance, exceeds $7,000. However, the court pointed out that both appointments were confirmed before the application was filed, so there was no reason that the counsel could not have provided some evidence as to the anticipated cost of obtaining the expert evidence. The court further said that medical experts retained in motor vehicle injury cases will have a fee schedule setting out their expected fees for assessment, report-writing, trial preparation and attendance.
The court wrote in its decision, “A prudent person would not make a significant financial commitment, such as buying a car, without knowing what the purchase price of that car will be. Similarly, engaging a medical professional to provide an independent assessment of the plaintiff, without knowing in advance what that will likely cost, is not reasonable.”
The court noted that the requirement to make an application before the disbursement is incurred has resulted in a recent flurry of short-notice applications. Consequently, neither party has sufficient time to prepare fulsome materials, the evidence and submissions are often inadequate, and judicial resources are expended on hearing a short leave application.
The court highlighted the need for applicants to provide detailed evidence of the nature and necessity of the disbursements, the potential prejudice suffered if the disbursements are not excluded, and the likelihood of disbursements exceeding the regulated cap. In this case, the plaintiff's failure to provide such evidence, particularly regarding the total anticipated disbursements and the potential impact on the disbursement limit, led to the dismissal of the application.
