On October 24, 2019, Chief Justice Hinkson ruled in Crowder v British Columbia (Attorney General) that recent changes to Rule 11-8 of the Supreme Court Rules, which limited the number of expert opinions a party could rely upon in a personal injury action to three independent experts, are unconstitutional and of no force and effect.
The recent changes to the Rule were brought into law by an Order in Council and without any consultation with stakeholders, many of whom considered the new Rule to be draconian and unjust. The Trial Lawyers Association (primarily members of the Plaintiffs’ Bar) brought the petition and made much of the fact that significantly injured plaintiffs would see their claims prejudiced by the limit. The Chief Justice conceded that complex injuries often require multiple experts in excess of three for the Court to properly assess damages.
Ultimately, the Chief Justice held the new Rule effectively undermined the Court’s authority to control its own process and conflicted with the Court’s inherent jurisdiction.
By and large more experts mean higher litigation costs. Along with ICBC, insurers involved in bodily injury litigation in BC were expected to benefit from the new Rule. BC’s Provincial Government predicted that the new Rule would result in significant cost savings to ICBC from fewer reports being tendered at trial and lower damages awards.
What will be the next step? The Attorney General has not yet indicated whether it will appeal the decision. In the judgment, the Chief Justice hinted that the Attorney General could have enacted the same Rule by amending the Evidence Act, the statute governing admissibility of evidence at trial. Additionally, while the new Rule gave the Court discretion to allow more than three experts but only as court-appointed or joint experts, the Chief Justice was concerned with the lack of discretion to allow parties to tender a greater number of their own independent experts. This leaves open the possibility that a revised version of the Rule giving the Court greater discretion to permit more than three expert reports may be allowed to stand.
The decision is here.
Should you have any questions or require further information, please contact Nigel Beckmann.