In the first reported 6% disbursement cap case, Nagra v. Prasad,2023 BCSC 2297 the plaintiff sought an exclusion of disbursements under the Disbursements and Expert Evidence Regulation, B.C. Reg. 31/2021. The regulation, effective November 27, 2023, capped disbursements at 6 percent of a plaintiff’s total damages, requiring applications to exclude disbursements before they are incurred. The purpose of this NDP regulation is to increase profits for the government run auto monopoly ICBC at the expense of the injured. Fortunately for this plaintiff, the court found that applying this law would be unfair to this personal injury claimant.
The plaintiff, Mr. Nagra, had been injured in a motor vehicle accident in 2017, experiencing ongoing health issues affecting his ability to work. The application focused on obtaining a report from an occupational therapist, Mr. Padvaiskas, and anticipated rebuttal reports. The plaintiff argued that excluding these disbursements was crucial for proving future income loss and medical costs.
Master Nielsen considered the conditions outlined in sections 5(6) to (10) of the regulation. Notably, the plaintiff made the application before incurring disbursements, highlighting the potential financial burden. The court examined the nature and value of the disbursement, the associated prejudice, and the necessity for justly resolving the case.
Master Nielsen acknowledged the potential prejudice to the plaintiff, given his limited financial resources and the importance of the occupational therapist’s report in establishing causation. The court found that the requested disbursements were excluded, allowing the plaintiff to proceed with the expert reports.
Additionally, the issue of costs arose, with the plaintiff seeking costs for the application. The defendant argued against costs, asserting that the application was unnecessary. Master Nielsen inclined towards costs for the plaintiff, emphasizing the need for an overall victory in the case to justify today’s application costs.
In summary, the court granted the exclusion of disbursements, addressing the plaintiff’s concerns about financial limitations and the crucial role of expert reports in establishing the case. The question of costs remained under consideration, with the court leaning towards costs for the plaintiff if they achieve overall success in the case.
Although this could be considered a total victory for the plaintiff, the new regulation forced her to disclose the experts selected privately for her case. If she chooses not to use these experts, the application process has now given ICBC an unfair advantage and provided them with information for which they would otherwise not be entitled to receive before the final determination of the case.