■ MULGREW’S VIEW,
Sweeping restrictions Monday by B.C. Attorney General David Eby on the use of experts in personal injury trials, designed to help ICBC’s bottom line, were denounced immediately.
Personal injury lawyers were outraged that Eby, who already has capped minor injury claims starting April 1, was unilaterally changing more rules, causing chaos in the courts where clogged dockets mean trials now are being scheduled for 2021.
“It is concerning to Trial Lawyers Association of B.C. that the attorney general, who is responsible for the administration of justice for all British Columbians, is forcing such severe restrictions on a victim’s right to prosecute her or his claim to the sole benefit of one party, ICBC,” said the group representing most of the personal injury bar.
The group said the attorney general apparently is forcing the changes unilaterally.
“He is doing so despite protest from the independent rules committee, which is comprised of justices of the Supreme Court of British Columbia and a number of senior lawyers from around the province from various areas of practice, including lawyers who do defence work for ICBC.”
Bruce Cohen, a retired justice who acts as the B.C. Supreme Court’s communications officer, declined to be dragged into the controversy.
The NDP minister maintained the Crown corporation’s litigation costs had jumped 43 per cent in the past five years.
While lawyers might not be responsible, they were part of an expensive dysfunctional process, Eby said: “It’s the excesses of the current system that is the problem, a system long overdue for reform.”
Instead of insinuating their profession caused the ICBC “dumpster fire,” the lawyers insisted it was time for Eby to blame those who deserved it — company executives who continued to receive bonuses during the financial meltdown and bad policies.
They were incensed Eby passed the changes behind closed cabinet doors by order-in-council, precluding debate in the legislature.
“Passing such consequential changes to our system of civil justice with no legislative debate is undemocratic,” the association said in its release.
“Time and again this government seems to favour ICBC’s financial interests over the legal rights of British Columbians, and this rush to pass restrictions on how victims of negligence must prove their cases at law is the most recent illustration of making car accident victims pay for reckless driving.”
There is no question far too many of the roughly 200 personal injury cases a year feature ridiculous armies of competing “experts” who can’t agree among themselves, leaving judges and jurors scratching their head trying to pick a favourite.
A serious criminal trial shouldn’t take longer than three years, the highest court has decreed, yet civil fights over car accidents can take much longer.
Not too long ago, I noticed one taking place six years after the crash — testing memories and the very purpose of witness evidence.
The damage claims included past and future loss of income, homemaking capacity, the cost of future care as well as non-pecuniary and special damages.
The woman’s lawyer marshalled opinion evidence from eight experts including some of the treating doctors, medicallegal specialists, a vocational assessor and an economist.
It has been more than a decade since the B.C. Justice Review Task Force said expert evidence rules needed an overhaul because duelling specialists made it so exceedingly difficult to resolve complex issues. The task force wanted to impose new rules, but the legal profession nixed the initiative — it might be more efficient, but it could restrict counsel’s ability to uncover the truth.
Eby said an average of six experts are retained by lawyers on cases in excess of $100,000, compared to two by ICBC.
However, ICBC was slammed in 2017 for using some medical experts on a pre-approved list who were producing prejudicial reports against claimants, so you can understand why plaintiffs might be covering all avenues.
Eby’s argument aside, his numbers are suspect, especially when you consider the loser pays costs in litigation.
Asked to explain the high projected savings — perhaps $400 million or more — the government did not respond by deadline. That looks like legerdemain — perhaps to set the stage for a government bailout or a move to no-fault insurance?
An ICBC spokesman said that although only about 200 injury claims go to trial each year, expert costs are also paid by the corporation on settled claims.
“We settle about 15,000 litigated injury files a year and paying for the plaintiffs’ experts is almost always a condition of settlement,” he said.
Richard McCandless, a retired senior civil servant who scrutinizes ICBC and has acted as an intervener during regulatory hearings, noted its books remain opaque.
“Key volume and severity information in the 2017 claims study prepared by Ernst Young to support the $1.2 billion net savings estimate was redacted by ICBC, using the highly suspect argument that disclosing this information could harm the corporation’s financial interest,” he explained in his most recent analysis.
“Thus, ICBC can use selected statistics and comparisons which explain the rapid increase in the estimate for current and prior years’ claims costs, and avoid presenting the full picture, such as the change in the number and cost of unrepresented claims and those claims that are represented but not litigated.”