On October 24, 2019, Chief Justice Hinkson released a decision striking down Rule 11-8 limiting the number of expert reports on motor vehicle actions. In brief, in Crowder v. British Columbia (Attorney General), 2019 BCSC 1824, Chief Justice Hinkson declared the rule changes (Rule 11-8) limiting the number of experts in motor vehicle litigation to three experts to be unconstitutional and of no force and effect. Rule 11-8 was to also take effect with respect to all personal injury claims as of February 1, 2020.
In his reasons, Chief Justice Hinkson found that Rule 11-8 would bar the admissibility of expert evidence that had been admissible at common law. Accordingly, Rule 11-8 effected a change in substantive rather than procedural law and therefore was ultra vires, or outside the legal power or authority conferred on the government by the Court Rules Act.
More importantly, Chief Justice Hinkson also found that Rule 11-8 restricted a core function of the Court to decide a case fairly upon the evidence adduced by the parties. A key determining factor in Chief Justice Hinkson’s reasoning was that Rule 11-8 provided no discretion to the Court in its application. The previously existing court rule allowing Court-appointed experts was no answer, as it forced the Court to play an investigatory function in place of its traditional non-adversarial role. Chief Justice Hinkson noted that none of the other Canadian jurisdictions where an expert limit was imposed eliminated judicial discretion to depart from the expert limit. Furthermore, for the most part the expert limit in the other jurisdictions was effected by amendment to substantive legislation, i.e. the jurisdictions’ respective Evidence Acts (the statute governing admissibility of evidence at trial).
Rule 11-8 change was intended by the British Columbia NDP government to assist with stemming the significant losses posted by ICBC, amounting to $2.5 billion over the prior two years. It had been projected that this rule change would have saved ICBC $400 million, and therefore Chief Justice Hinkson’s decision has an immediate effect on ICBC’s bottom line for the 2019-20 fiscal year. The rule change would ostensibly have also benefited other non-ICBC defendants.
The Attorney General David Eby has been quoted in the Vancouver Sun newspaper article as saying “we have a number of potential responses depending on the decision and we’re looking at it carefully to figure out how we’re going to go forward.” Mr. Eby further said “I think that everybody agrees that the costs of going to court to try and resolve the matter are too high,” and while the government had hoped to use the court rules to find efficiencies, other approaches may have to be considered. Apart from whether the government will appeal the decision, one does begin to wonder if transition to a no-fault regime is among these other approaches being considered.