British Columbia

B.C. Supreme Court finds Eby's ICBC rule change 'unconstitutional'

The B.C. Supreme Court has scrapped a rule by B.C. Attorney General David Eby that limited the number of expert witnesses allowed in vehicle injury claims in an attempt to stem losses at ICBC.

Attorney general had said the rule would save ICBC around $400 million per year

B.C. Attorney General David Eby says he is disappointed by the decision and will review it thoroughly. (Tanya Fletcher/CBC)

The Supreme Court of B.C. has scrapped a new rule by B.C. Attorney General David Eby that limited the number of expert witnesses allowed in vehicle injury claims in an attempt to stem the flow of losses at ICBC.

In a court judgment, Chief Justice Christopher Hinkson found that the new rule, called rule 11-8, "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."

This means it's up to the court to decide how evidence can be introduced and what limits are allowed to be enforced, not the government.

Hinkson wrote that the rule required the court to play an investigatory function instead of its non-adversarial role.

In February, Eby announced the changes that were meant to save the provincial auto insurance corporation around $400 million a year.

The rule made it so parties to injury claims could use only one expert report for fast-track claims, and up to three experts and reports for all other claims. Additional reports would need to come from joint experts or be appointed by the court.

B.C. Supreme Court provides peace of mind 

"It's good news," says Corinne Crowder, whose husband Greg was the lead plaintiff in the case along with the Trial Lawyers Association of British Columbia. "And we haven't had a lot of good news lately."

In 2017, Greg was stopped in traffic along Highway 3 in Southeastern B.C., when a fuel-tanker truck slammed into his vehicle. His injuries included trauma to his head, eyes, teeth, face, neck, back, legs, chest, arms, and hands. Since then, he has struggled with dizziness, loss of hearing, PTSD and depression, among other things.

"[My life's] been turned upside down," said Greg Crowder.

Greg Crowder is seeking damages after a crash in southeastern B.C. left him with several long-term injuries and trauma. (Trial Lawyers Association of British Columbia)

Financially, it has been an immense burden, with Corinne becoming her husband's full-time caregiver.

He says the B.C. Supreme Court's decision gives them some peace of mind that they will be able to have a fair trial for their claim.

"It's good for everybody that's been in an accident or will be in an accident," he said.

Cases can now be judged on merit, says lawyer

Before rule 11-8 was introduced, those who had been injured in court could use as many experts as needed to prove their damages — the monetary amount they should be awarded as compensation for their injury.

"Those with the most serious injuries would have been hurt the most," said Ron Nairne, president of the Trial Lawyers Association of British Columbia. He says the more serious the injury, the more need there is for expert reports.

Ron Nairne says the Trial Lawyers Association of British Columbia is willing to work with Attorney General David Eby to control costs, but only if it isn't at the expense of their clients. (CBC News/Nicolas Amaya)

"This decision ensures people will be able to have their cases judged on their merits, instead of some arbitrary limit," he said.

Nairne says he and the association are open to working with Eby to try to contain costs, but only in a way that doesn't further hurt their clients.

A setback for Eby's cutbacks

Thursday's decision was unwelcome news for Eby, who spoke with reporters from the halls of the legislature in Victoria.

"This is obviously a very disappointing case to read," Eby said, noting B.C.'s justice system is bloated because of an excessive adversarial expert system that costs both plaintiffs and defence too much money.

The attorney general says he is struggling with Justice Hinkson's concerns over the constitutionality of restricting adversarial witnesses considering other countries have limited or banned access to adversarial witnesses.

"Why British Columbia couldn't [limit it] to three is difficult to understand," said Eby.

He said he intends to read the decision closely and will then decide the government's next step; he did not say whether that means an appeal or other legislation.

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