The Province is introducing amendments to the B.C. Evidence Act that if passed will limit the following in motor vehicle personal injury cases:
1. The number of expert reports;
2. The amount recoverable from an unsuccessful party for the cost of each expert report; and
3. The total recoverable disbursements of a settlement or judgement amount.
Before introducing the proposed Evidence Act amendments, the Lieutenant Governor previously added Rule 11-8 to the B.C. Supreme Court Civil Rules in February 2019. The Rule limited expert evidence on the issue of damages arising from personal injury or death to three experts and three expert reports. For fast track matters (those less than $100,000 requiring a short hearing) the limit was one expert and one report. The Rule failed to extend judicial discretion to allow parties a greater number of their own independent experts. Rather, the Court’s discretion to allow more than three experts was limited to court-appointed or joint experts. The Trial Lawyers Association of B.C. (primarily members of the plaintiff’s bar) promptly brought a judicial challenge. On October 24, 2019, the Supreme Court Chief Justice Hinkson ruled the B.C. government’s limit on expert reports: “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.”
As with Rule 11-8, Bill 9 titled the Evidence Amendment Act, 2020, similarly seeks to limit claimants to one expert in fast track proceedings and three experts in non-fast track cases. However, unlike its impugned predecessor, Bill 9 allows the Court to permit additional experts by application if two conditions are met. Firstly, the subject matter of the additional evidence must not be addressed by other experts. Secondly, the party making the application would suffer prejudice disproportionate to the benefit of not increasing the complexity and cost of the proceeding. Bill 9 also allows for more than three experts on consent of the parties or one or more additional reports from an expert on consent of the litigants.
The limit on experts will not apply to expert reports served before February 6, 2020, or if a notice of trial was filed and served before February 6, 2020, for a trial before October 1, 2020.
Additionally, Bill 9 allows for the amount of recoverable disbursements to be restricted to a percentage of the total amount of the judgement or settlement. The Government announced they intend this percentage to be 5%. Disbursements include all expenses incurred for the purpose of the lawsuit, including but not limited to, courier fees, process servers, photocopying and expert reports. The maximum amount recoverable for an expert report will be capped at $3,000.
Therefore, in a matter with a $150,000 judgement the maximum disbursements payable will be $7,500. If the successful litigant tendered three expert reports at $3,000 each, the disbursements would fail to cover the cost of the reports alone.
The 5% limit on disbursements will not apply if a notice of trial has been filed and served before February 6, 2020, for a trial before October 1, 2020. The $3,000 limit to recoverable expert reports will not apply if the cost has been incurred before February 6, 2020, or if a notice of trial has been filed and served before February 6, 2020, for a trial before October 1, 2020.
Whether Bill 9 is enacted as legislation remains to be seen. If enacted, it also remains to be seen whether Bill 9 proffers sufficient judicial discretion to survive a judicial challenge. The full text of Bill 9 at first reading can be found here: