On February 12, 2019, the NDP government, by Order in Council and without legislative assembly debate, severely restricted the ability for an injured victim to seek compensation for his/her ICBC injury claim. Rule 11-8 of the Supreme Court Rules was introduced without notice to the profession and without support from the Rules Committee, a committee set up of independent legal experts to consider changes to the Supreme Court Rules.
The NDP government introduced changes to the Rules of Court on February 12, 2019 retroactively limiting the total number of quantum experts and expert reports to three on all ICBC claims that are not subject to Fast Track Litigation. If the ICBC case is in Court under the Fast Track provisions, the limit is one expert and one expert report.
Given that there was no notice of the change to the Rules of Court, many lawyers were caught by surprise as they had not served all their expert reports by February 11, 2019 given most reports are not served until the 84-day deadline before the scheduled trial.
Given tremendous pressure on the NDP government for this clearly unfair “blindside” on the legal profession, on March 22, 2019 the government backed off slightly by changing the Rules such that any trial in 2019 would not be subject to the limit on expert reports. Even so, there are many trials set for January 1, 2020 and beyond where the retroactive nature of the change in the Rules is an unfair “blindside” as the injured victim has unserved reports that cannot be used to prove the case.
Regardless, the flip flop clearly shows that the NDP government is putting in one-sided Rules on the request of ICBC trying to limit cost to ICBC without full consultation and understanding of the implications of the Rules.
As the Rules stand, all quantum expert reports in an ICBC case are covered by the Rule unless:
- The expert report was served on or before February 11, 2019; or
- The trial is set to occur in 2019.
If you don’t meet one of the two exceptions above, then the limit on expert reports and experts is three unless the case is Fast Track which means the limit is one expert and one report.
The Rule is a tremendous advantage to ICBC on more complex cases because it is very difficult to find an expert that can provide an opinion on multiple injuries and/or multiple heads of damages. For example, if an injured victim has a head injury with a physical injury as well plus the inability to work, how can the injured victim fully prove the loss with one three experts?
While expert fees have escalated in recent years and should be contained, the simple and fair answer would have been to “cap” the cost of expert reports rather than limit the number of experts on a file. This is a poorly thought out one-sided Rule brought in by the NDP government which takes away the rights of injured victims to prove the full extent of their injuries in court. The rule is a tremendous advantage for ICBC as it is the injured victim that needs to prove the loss not ICBC.Tweet