Financial hardship is expected for those injured in car accidents in British Columbia. David Eby and the NDP have brought back the 6% cap on injury victim’s case expenses. The Disbursement and Expert Evidence Regulation will create prejudice for those injury victims left fighting ICBC and their lawyers. The change in law prevents injury victims from having the evidence to prove their cases. By doing this, the NDP hopes to put more money in the pockets of auto insurer, ICBC. If this scheme works, injury victims will be unable to prove their cases. Disbursements are the case expenses incurred to prosecute the case. Disbursements include expert assessment fees, investigations costs, court and hearing fees, witness expenses, photocopying costs, jury fees, costing for obtaining records and expenses to present the case at trial such as video conferencing and court reporting services.
Brief Summary of the New Cap on Disbursements and Expert Reports
The amendments to the Disbursements and Expert Evidence Regulation in BC, specifically Section 5, bring changes to the definition of “excluded disbursements” in vehicle injury proceedings. These limits on case expenses were signed into law by Order in Council 628 on November 27, 2023.
By making these changes the legislation has been re-introduced after section 5 was deemed of no force or effect in Le v. British Columbia (Attorney General),2022 BCSC 1146.
Notable positive changes, however, include the exclusion of disbursements for expert evidence or reports on liability, allowance of disbursements with mutual consent, and a court’s authority to order exclusion based on application. Additionally, there are conditions outlined for such orders, including the timing of application, evidence of potential prejudice, and the necessity of the disbursements for a fair resolution.
These amendments apply to all vehicle injury proceedings, regardless of when they were initiated, with certain provisions exempting cases based on trial dates and incurred disbursements.
The implications include a more detailed and expensive process for handling disbursements in personal injury cases. Although the caps on case expenses emphasize fairness and proportionality, this will likely not be the result. Injury claimants will be required to make additional court applications to recover fair and reasonable expenses. This will lead to delay and increase in costs for victims and the court.
Case Expenses Already Incurred
The regulation provides for disbursements that have already been incurred. If the trial date set out in the notice of trial filed in relation to a vehicle injury proceeding is more than 3 months after the coming into force of the relevant subsection, the limits on disbursements set out in the regulation do not apply to disbursements incurred by a party if the court is satisfied that the party necessarily or properly incurred those disbursements before the coming into force of the subsection.
For personal injury trials falling within the three months following the coming into force of the Regulation (November 27 2023), the limits on disbursements do not apply to those proceedings.
Excluding Disbursements Without a Court Application
Under Section 5, Subsection 5 of the amendments, if the trial date set out in the notice of trial filed in relation to a vehicle injury proceeding is more than 3 months after the coming into force of the relevant subsection (Subsection 4), the court may, on its own discretion, assess and make a determination regarding the exclusion of disbursements.
This determination is likely to occur during the course of the proceedings, and the court would consider whether the party necessarily or properly incurred the disbursements before the specified time frame. It’s essential that the conditions outlined in the regulation are met for the court to exercise this discretion without requiring a separate application. I would expect this to occur at the trial of the matter, at a case planning conference or trial management conference.
Court Application to Exclude Disbursements from the Cap
You are permitted to bring an application for exclusion under the amended regulations before incurring the disbursements. The application must be made before the expenses related to expert evidence or reports are actually incurred. This requirement will force the injury victim to disclose confidential, privileged and potentially private information about their case and personal life. This will compromise the lawyer client relationship and give the auto insurer, ICBC, access to private documents.
Increased Chambers Applications
If your case is set for trial after February 27, 2024 you will have to apply to exclude a case costs before it is incurred. The regulation doesn’t specify a fixed limit on the number of experts permitted. Instead, it focuses on the nature and evidentiary value of each disbursement related to expert evidence. The court may consider the necessity and relevance of each expert’s involvement in resolving the complexity of the vehicle injury proceeding. The key is to demonstrate that the experts are essential to justly resolving the case, balancing the importance of the issues and avoiding undue hardship.
When bringing an application for exclusion under the amended regulations, there are several restrictions outlined:
- Timing: The application must be made before incurring the disbursements related to expert evidence or reports. It’s a prerequisite that the request is submitted prior to the actual expenses being accrued.
- Simultaneous Applications: If the application involves both exclusion of disbursements and an application under section 12.1 (5) of the Act, both applications must be made at the same time. That is if you are seeking to have more than 3 experts or 1 expert for Fact Track cases.
- Conditions for Exclusion: There are specific conditions (outlined in subsection (8)) that must be satisfied for the court to consider excluding the disbursements. These include demonstrating that the party making the application would suffer prejudice disproportionate to the benefit of not increasing the complexity and cost of the vehicle injury proceeding.
- Application Content: The party making the application must provide certain information, including the nature and evidentiary value of each disbursement, evidence of potential prejudice, and proof that incurring the disbursements without exclusion would cause undue hardship. Your affidavit needs to provide (i) evidence that there is a reasonable risk that the total amount of disbursements the party intends to incur to resolve the vehicle injury proceeding will exceed the disbursement limit, (ii) evidence that the disbursements that are the subject of the application are necessary to justly resolve the vehicle injury proceeding in light of the complexity of the vehicle injury proceeding or the importance of the issues in dispute, and (iii) evidence that the party would be unable, without undue hardship, to incur the disbursements that are the subject of the application were those disbursements not excluded.
ICBC Settlements and Case Cost Caps
It is important to note that out of court ICBC settlements are subject to this new cap. So if you accept an ICBC offer you are only entitled to 6% of the settlement amount as compensation for your case expenses. For example if your settles for $100,000 plus case costs you will receive a maximum of $6,000 toward your disbursements. Considering that one expert assessment and report costs about $8,000 the compensation for your case costs will be inadequate.
With the current regulations injury claimants should agree to allowing disbursements by mutual consent before a case is settled. Alternatively, injury claimant’s will have to seek the court’s authority to order exclusion by way of court application.