Appeal Court dismisses B.C.'s attempt to limit cost of litigation in ICBC cases

B.C.'s top court has thrown out an appeal by the provincial government aimed at reducing litigation costs for the Insurance Corp. of B.C.

In this week's ruling, Justice Mary Victoria Newbury agreed with a lower court that last year overturned a key provincial regulation as unconstitutional. The other two members of the appeal panel, Justice David C. Harris and Justice Peter Voith, didn't find the regulation unconstitutional, but threw it out on administrative grounds.

The provincial regulation capped the amount a court could award a successful plaintiff for expenses of putting together their cases in personal-injury suits, such as hiring experts. The regulation said the successful plaintiff could be awarded costs up to only six per cent of the total damages won, subject to some specific exceptions.

The regulation applies only to cases involving accidents that happened before ICBC switched to a no-fault insurance model and are still going through the courts.

Harris and Voith said that limiting disbursements in motor vehicle personal injury claims would make it difficult for a “significant number” of successful plaintiffs to “recover the costs of filing the expert reports necessary to advance those claims.”

The lower court had said the B.C. regulation would make it much more difficult for people to bring a lawsuit for vehicle injuries. The B.C. government, which has been desperate to put out the so-called financial dumpster fire at ICBC, appealed that ruling.

But Harris and Voith agreed with the lower court, saying the B.C. regulation limited the ability of people to access the courts: “The reality is that, in personal injury litigation, plaintiffs carry the burden of proof to make out their claims. ... Personal injury litigation typically cannot be advanced without expert evidence.”

The 82-page ruling continues a number of legal challenges by the Trial Lawyers Association of B.C. on behalf of people injured in car crashes in response to changes the province has made to try to reduce litigation costs paid out by ICBC.

The association was pleased with the Appeal Court ruling, lawyer Michael Elliott of the association said in an email.

The regulation meant injured persons would have to pay for any court costs above the six per cent

The reality is that, in personal injury litigation, plaintiffs carry the burden of proof to make out their claims.

cap, for everything from photocopying to expert witnesses, out of their damage award for income loss, care costs or pain and suffering, Elliott said.

In one of the injury cases before the court, it was estimated expert witnesses could cost $100,000 if the case went to trial. The lawyer in the case said that was way over six per cent of the expected damages award in the cases.

The cap is unfair particularly to low-income earners, the disabled and the young, Elliott said: “Today's ruling ... will ease the burden on injury victims.”

The Attorney General Ministry, which appealed the lower court's ruling, didn't have an immediate comment.

“The ministry is taking the time to analyze the decision,” a representative said by email.