Province to appeal decision striking down ICBC fee cap
The B.C. government says it intends to appeal a court decision striking down a regulation that limits how much a plaintiff can be reimbursed for expert testimony and other costs arising from motor vehicle collision claims.
The regulation caps reimbursement of fees, such as those charged by experts, at 6% of either the total damages awarded by a court or of the amount agreed to in a settlement.
For example, if someone receives $10,000 for a personal injury claim, Insurance Corp. of B.C. — the government-run insurance monopoly — would only have to reimburse up to $600, for things such as medical opinions or crash reconstruction reports. Any costs over this amount are to be borne by the plaintiff, essentially eating away at the award for damages they received.
The regulation was brought in as part of a suite of legislative changes to lower the government’s costs for litigating motor vehicle claims and thus lowering the cost of car insurance via ICBC.
“We have been clear that expensive, drawn-out legal battles were not working for British Columbians injured in car crashes,” said Minister of Public Safety and Solicitor General Mike Farnworth.
“That’s why we made changes intended to reduce disproportionate expert reports, litigation costs and delays. We are appealing the court’s recent decision and will not comment further at this time.”
The case was brought forward by Thi Sau Le, a 77-yearold retiree claiming to have been struck by three vehicles on Jan. 3, 2020.
Le’s lawyers estimate that, due to the number of injuries involved, experts in up to eight medical or therapeutic specialties will be needed to prove her damages, costing upwards of $50,000 and thus “significantly exceeding” 6% of any damage award.
Le and the Trial Lawyers Association of B.C. petitioned B.C. Supreme Court claiming the regulation was wrong on both administrative and constitutional grounds.
Justice Lynn Smith deemed in a July 8 ruling that the regulation was inconsistent with the enabling statute, the Evidence Act, as well as the Constitution Act and “it is therefore of no force or effect.”
Smith found the case to be similar to when the government sought to limit each party in a motor vehicle action to three experts on the issue of damages, with only one report from each expert. That regulation was found to limit a court’s ability to hear evidence necessary to make a decision, Smith noted, adding the 6% rule was in direct response to the government no longer being able to limit experts.
In assessing the regulation on administrative grounds, Smith said the governing statute gives the court discretion to allow for additional experts if not doing so would result in serious prejudice.
The regulation capping reimbursement at 6% does not contemplate such discretion and is inconsistent with the Evidence Act, the ruling said.
On constitutional grounds, the petitioners argued the regulation impeded access to justice because it will limit a person’s ability to seek expert opinions due to costs — a matter the government freely admits as an intended effect, Smith noted.
“Some plaintiffs will be unable to marshal all of the evidence necessary to prove all aspects of their case without sacrificing other reasonable expenses or necessary portions of their compensatory damages,” wrote Smith. “Others may have the evidence in the form of the necessary expert reports, but will be unable to proceed to trial because of the additional costs and risks associated with having those experts testify.”