In the case of Shrieves v. British Columbia (Attorney General), 2024 BCSC 889, the Trial Lawyers Association of BC (TLABC) sought an interlocutory injunction to suspend its operation pending the resolution of their petition. A central issue before the court was whether there was a fair question to be tried regarding the petitioners’ challenge to section 5 of the Disbursements and Expert Evidence Regulation, B.C. Reg. 31/2021 (DEER). The petitioners, Joanne Lesley Shrieves and the TLABC, argued that this regulation, which caps recoverable disbursements in motor vehicle personal injury actions, was unconstitutional and invalid.

History of the 6% Cap to Help ICBC

The regulation in question is part of a series of legislative reforms aimed at addressing financial issues within British Columbia’s automobile insurance system controlled by the monopoly Insurance Corporation of British Columbia (ICBC). The reforms followed recommendations from a 2017 report by Ernst & Young, which identified excessive litigation costs, particularly due to expert evidence, as a major financial burden. Previous related reforms and their associated legal challenges were discussed, including changes to the jurisdiction of the Civil Resolution Tribunal and the number of expert reports allowed in such cases.

The Petitioners’ Argument

Ms. Shrieves, who is pursuing a personal injury claim from a motor vehicle accident, and TLABC argued that the cap on recoverable disbursements:

  1. Infringes on Section 7 of the Canadian Charter of Rights and Freedoms, which protects life, liberty, and security of the person. They contended that the cap interferes with plaintiffs’ access to necessary health care and fair compensation for their injuries.
  2. Violates Section 15 of the Charter, which guarantees equality before the law, by disproportionately affecting disabled individuals and those requiring significant expert evidence to support their claims.

The Attorney Generals’ Argument

The respondents, including the Attorney General of British Columbia and Isabel Leontine Snelgrove, opposed the injunction, arguing that:

  1. The petitioners had not demonstrated a fair question to be tried under the Charter. They claimed that financial impacts alone do not constitute a violation of Section 7 and that the regulation does not create a distinction based on enumerated or analogous grounds under Section 15.
  2. Any potential harm to the petitioners was speculative, avoidable, and curable. They suggested that plaintiffs could seek exclusions for necessary disbursements through available legal channels without waiving privileged information.
  3. The balance of convenience did not favor suspending duly enacted legislation that serves the public interest.

Court’s Analysis

Justice Milman applied the well-established test which requires the applicant to demonstrate:

  1. A serious question to be tried.
  2. A risk of irreparable harm.
  3. A balance of convenience favoring the granting of an injunction.

Serious Question to be Tried

The court found that the petitioners met the low threshold for a serious question to be tried under Section 15 of the Charter, as it was arguable that the regulation could disproportionately impact certain plaintiffs. However, the Section 7 claim did not meet this threshold because it did not involve access to health care per se but rather financial compensation for injuries, which does not fall under the protection of Section 7.

Irreparable Harm

The court determined that the alleged harms were speculative and not irreparable. The possibility of plaintiffs having to disclose privileged information was not compellingly demonstrated, and any financial losses could potentially be recovered if the regulation were later struck down.

Balance of Convenience

Finally, the court held that the balance of convenience did not favor the petitioners. The public interest in maintaining the operation of duly enacted legislation outweighed the speculative and avoidable harms alleged by the petitioners.

Stay Application Dismissed

Justice Milman concluded that the petitioners did not satisfy the applicable test for an interlocutory injunction and dismissed the application. This case reiterates the high threshold required to suspend the operation of legislation pending a constitutional challenge, emphasizing the need for clear, non-speculative evidence of irreparable harm and a compelling balance of convenience.

As suggested by Judge Milman,

Plaintiffs wishing to exceed the cap retain the option to incur additional disbursements at their own expense in the first instance. If this proceeding succeeds and the impugned provision is struck down before their trials (or more importantly, the subsequent cost hearings) conclude, then they can still seek to be reimbursed for any additional disbursements at that stage. To protect their position, they can put off their cost hearings to await the outcome of this proceeding.

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