B.C. to retool law to place limits on hiring of experts for ICBC cases

B.C.’s attorney general says he plans to use new legislation to reinstate limits on medical expert reports in automobile crash cases that the province’s Supreme Court ruled were unconstitutional.

David Eby said Wednesday he wants to put the limits into amendments for the Evidence Act next spring, instead of appealing the B.C. Supreme Court ruling delivered last month.

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“It will limit the number of adversarial expert reports and include a narrow judicial discretion to allow additional experts in select cases,” Eby said.

“We are also looking at other ways to make changes within the existing motor vehicle litigation system to improve efficiency, encourage prompt settlement and provide support to crash victims, also within the Evidence Act. By pursuing these amendments in the spring, we expect to achieve some future savings for litigants in our court system, including ICBC.”

The October ruling meant a $400-million hit for ICBC that could swamp the thin $179-million projected provincial budget surplus this year.

Eby said that possibility remains. However, he hopes the new legislation, if passed, “could potentially provide some savings going forward that would need to be deducted from that.”

ICBC has yet to recalculate the savings.

ICBC lost almost $2.5 billion the past two years due to rising claims costs and legal fees. Eby set a $5,500 cap on pain and suffering claims for minor injuries that is supposed to save $1 billion annually, but is also being challenged in court.

ICBC was supposed to stabilize financially this year, with an estimated loss of only $50 million. However, Eby confirmed that losses are worsening.

“At this stage, I can tell you that ICBC’s finances have slipped from the $50-million figure, but I would say not significantly, given historic loss patterns over the last couple of years. However, any slippage is a matter of concern for the government.”

Eby used a cabinet order in February to limit ICBC and plaintiff lawyers in auto-injury court cases to 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.

Chief Justice Christopher Hinkson ruled in late October that the cabinet order was unconstitutional because it violated the exclusive powers of a court to control its own processes.

Eby said his new legislation would give judges more leeway for additional expert reports than the cabinet order. “One of the core issues in the decision was that there was no discretion in the rules for a judge in particular cases to be able to increase the number of experts,” he said.

But giving judges more discretion under a cap was not something Hinkson’s ruling endorsed. He said limiting expert reports was “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.”

Eby admitted to “tension between the priorities and goals of government and priorities and goals of the judiciary,” but said he would be talking with the judges before bringing in legislation.

The Trial Lawyers Association of B.C., which represents personal injury lawyers opposed to the changes and participated in the court challenge, said it welcomed Eby’s decision not to appeal.

“We continue to encourage the attorney general to work with the rules committee and the chief justice to pursue balanced reforms that will benefit all British Columbians,” it said.

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