B.C. loses court challenge on medical expert report limits in ICBC cases
Credit to Author: Rob Shaw| Date: Thu, 24 Oct 2019 19:19:58 +0000
VICTORIA – B.C.’s Supreme Court has overturned new rules intended to limit the use of medical expert reports in automobile insurance cases, delivering a blow to the NDP government’s attempts to stem financial losses at the Insurance Corp. of B.C. and potentially endangering the provincial budget surplus.
A court judgement released Thursday by B.C. Supreme Court Chief Justice Christopher Hinkson ruled that the government’s limit of three expert reports was unconstitutional because it violated the exclusive powers of a court’s control over its processes.
“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,” wrote Hinkson.
“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.”
The challenge was brought by Gregory Crowder, who was involved in a May 30, 2017 rear-end collision involving a tractor trailer that left him with traumatic brain injuries, among other medical problems. His legal action alleged the limit on expert medical reports would not have made it possible to outline the scope of his injuries and lifetime of necessary future care. B.C.’s Trial Lawyers Association – which represents personal injury lawyers opposed to government’s ICBC reforms – joined the case.
They argued it an unprecedented interference with the court’s control of its process that encroached on the exclusive powers of the court and would create an undue hardship for plaintiffs to obtain justice.
The court largely agreed, though it stopped short of saying it created an undue hardship on plaintiffs. Hinkson wrote that the limit of three expert reports in auto insurance cases was “practically unworkable” and that government’s offer to allow joint experts and court-appointed experts were not satisfactory replacements.
“We think Mr. Justice Hinkson came down with a very considered and balanced ruling,” said Ron Nairne, a Vancouver lawyer who is the president of the Trial Lawyers Association.
“In our view it was certainly an overreach (by government). It was an overreach in the sense it was unfair. The more seriously injured a person is, the more they were harmed by this new rule.”
The decision overturns cabinet orders that Attorney General David Eby made in February, in which he declared that ICBC and plaintiff lawyers in automobile injury court cases would only be allowed to use only 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.
The change was supposed to save “in excess of $400 million” while encouraging faster settlements through courts and fewer costs by all sides.
Expert reports encompass medical experts and wage loss, but also account for millions of dollars in expenses annually to the provincial auto insurance system.
The government cap did leave some discretion for judges to permit additional court-appointed or joint experts.
Thursday’s court decision means an immediate $400 million negative financial hit for ICBC in a 2019-20 fiscal year in which its financial picture was supposed to stabilize to a $50-million deficit following a $2.5 billion loss during two years.
The $400 million impact of the court ruling will also pressure the NDP government’s provincial budget.
https://www.scribd.com/document/431900370/B-C-Supreme-Court-s-ICBC-Ruling
The projected surplus is $179 million for the fiscal year ending March 31, 2020, meaning the $400 million could either send the province into deficit or require Finance Minister Carole James to dip into contingency funds to cover the losses.
James already had to use $300 million in contingency funding earlier this year to keep the budget from dipping into deficit after weak economic results led to a dip in provincial revenue.
The court petition challenged the three-expert limit on three grounds.
In the first, the challengers argued a convention exists that court rule changes should only be allowed if approved by a rules committee that includes judges and lawyers. But Hinkson said he could find no such convention, and even if it existed it would have no legal force.
In the second point, the challengers argued that government used a cabinet order to make the expert report cap, and that cabinet orders can only change “practice and procedure” for courts, not “the means by which particular facts may be proved.”
Eby’s ministry tried to argue that there are also cabinet orders that set rules on expert reports, such as 84-day deadlines. But Hinkson said the report cap is a change in law and cabinet lacks the authority. Hinkson also acknowledged the legislature could theoretically enact the same expert report cap by amending the Evidence Act, and so he went on to address the constitutionality of the overall issue.
The third argument centred on whether the government’s limits on expert reports infringed on the core jurisdiction of a superior court to hear and determine the cases before it, which is protected under the constitution.
Eby’s ministry argued that core jurisdiction is narrow and the legislature has the power to restrict the ability of litigants to submit evidence.
Hinkson disagreed.
“The impugned Rule does more than limit the court’s discretion; it eliminates it, and that is the petitioners’ complaint,” he wrote.
The rule would mean the court has to “play an investigatory function by appointing expert witnesses, in contrast to its usual impartial, adjudicative role” by deciding if and when to appoint its own expert witnesses to add to the information beyond the cap on expert reports, Hinkson wrote.
“If the expectation is that the court would identify the needed evidence once counsel have led the evidence that they have chosen to place before the court, then it is practically unworkable. It would lead to adjournment of trials, scheduling difficulties affecting other cases and litigants, and could be unfair to a party that would have to deal with evidence thought necessary by the court with little or no notice.”
The rule would mean that it is no longer up to litigants to meet their burden of proof in using the necessary evidence, but that it would then fall on the courts to ensure there is sufficient expert evidence, or appoint its own experts, before it proceeds in a case.
“The impugned rule places the court in a role that it should not be placed in. 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.”
The rule changes were part of larger reforms introduced earlier this year to save ICBC from billions in financial losses and near-insolvency. The other reforms included a cap of $5,500 on pain and suffering claims for minor injuries, which was supposed to save $1 billion annually, as well as requirements for certain cases to go through a civil resolution tribunal before court.
The limits on medical experts had proven controversial. Eby had to publicly clarify that neither a court rules committee, nor the judiciary, had approved or endorsed the limits, and that it was a decision made solely by government.