According to the Petition filed by the Trial Lawyers Association of BC ( “TLABC”) on March 15, 2024 the Disbursements and Expert Evidence Regulation, (the “DEER”) is an unauthorized exercise of government authority and infringes the Charter Rights of car accident claimants. The NDP government openly admit that this legislation was brought in to benefit the auto insurance monopoly ICBC. This Regulation caps case expenses in personal injury cases at 6% of the claimant’s total damages post-trial or settlement. It singles out car accident victims allowing the Insurance Corporation of BC to pay less than judges award for their injuries.
To avoid the 6% cap, car accident victims will need to make applications under s. 5(6) of the DEER. To be successful, victims are forced to disclose their confidential case strategy to ICBC and lose the privacy rights with their lawyer. As the Trial Lawyers point out in their petition:
Detailed information about potential experts and other disbursements, a lawyer’s risk assessment as captured in early and evolving estimates for quantum, and the sequencing of various disbursements lie at the heart of how lawyers plan for, develop, and pursue a case. The same is true for lawyers’ assessments of the evidentiary value of possible disbursements. Such information forms part of the “protected area” that “facilitate[s] investigation and preparation of a case for trial by [an’ adversarial advocate” and so is litigation privileged. Where that information reveals the nature of advice provided to a client by counsel, it is also solicitor-client privileged.
TLABC argue that the 6% cap undermines the law of solicitor-client privilege and litigation privilege. The 6% cap is inconsistent with the purpose of Evidence Act section 12.1 which is to advance proportionality in personal injury litigation. They also argue that the DEER is an unreasonable exercise of government power and breaches our Charter rights. TLABC argue that the 6% cap inadequately considers Charter interests in: (1) preserving physical and psychological well-being without having to sacrifice entitlement to solicitor-client and litigation privilege; (2) interpretation services in court; and (3) equality under the law. The DEER essentially entrenches a disproportionate approach to procedure and costs in personal injury cases and is illegal, argue the TLABC.
There is immediate prejudice caused by ICBC becoming aware of the injury claimants strategic choices and investigations early in the proceedings. Furthermore, the necessary disclosure of privileged information could constitute a waiver that opens the door for ICBC seeking access to further records related to the disclosed information. ICBC will have a full view of the injury victim’s case, while victims will have no such access to ICBC’s strategic choices and investigation. A victim’s case will be an open book for ICBC, putting the auto giant in an even greater position of privilege and bargaining power.
The petition argues that the DEER limits motor vehicle accident victims’ ability to preserve their physical and psychological well-being. It was open to the province to achieve its objective of improving the finances of ICBC without imposing mandatory evidentiary requirements that necessitate waiving privilege or disproportionately burdening those who require accommodation due to language or disability.
It is a principle of fundamental justice that lawyers be permitted to maintain their commitment to their clients’ causes. However the 6% cap creates a situation where it is not possible to pursue a full and fair claim. Claimants must decide between foregoing necessary disbursements, disclosing privileged information under the DEER and handing ICBC a significant litigation advantage, or incur those disbursements at their own expense. TLABC argue this is illegal and unconditional.
The Trial Lawyers are seeking an injunction to suspend the operation of the 6% cap until the resolution of the petition. This application to suspend the operation of the 6% cap is scheduled to be heard on April 30, 2024. Unless the DEER is suspended or overturned it is still the current law of the land.