There are more changes in British Columbia being legislated.
To provide you with a brief history for a better comprehension, I will enumerate my article to market on the history here:
The government attempted to cap disbursements to 6% of the amount awarded as compensation. Eg: If a case was awarded 100,000 in damages, the insurer, according to the Rules and Regulations, would only need to reimburse a Plaintiff 6% of the value of the case – which would total $6,000 in this example.
The relevant Section from the Disbursements and Expert Evidence Regulations is noted:
Limits on amount of disbursements
“disbursement limit” means, in relation to a vehicle injury proceeding,
(a)the amount that is 6% of the total award of damages assessed by the court in the vehicle injury proceeding or, if an offer to settle the vehicle injury proceeding is accepted, 6% of the amount offered, or
The Trial Lawyers appealed this and as you will see below, the Court deemed the Regulation as unconstitutional and of “no force or effect.”
The anticipated decision from the BCSC in regards to the capped disbursements relating to personal injury actions arising from motor vehicle collisions in British Columbia has finally been released and published today on the BCSC website and has been deemed “of no force or effect”. The simple conclusion: I declare that s. 5 of the disbursements and expert evidence regulation is inconsistent with the enabling statute, s. 12.1 of the Evidence Act, and contrary to s. 96 of the Constitution Act, 1867. It is therefore of no force or effect.
The question remains, will this decision be appealed? and if not, how will this impact the legal industry as it relates to tort claims and ICBC? Will the government back peddle with their no-fault legislation? All this remains to be seen.
UPDATE – Nov 2023
Instead of appealing the Court decision, the Government has decided to introduce Legislation (just weeks ago – late November) Order in Council #628 and essentially brings into force CAPS on disbursements through legislated changes. Order in Council #628 is attached here for your review.
In order to fully understand Order in Council #628, you also need to review the Disbursements and Expert Evidence Regulations which I have also attached same here under Section 5 which is the relevant section that is being amended by Order in Council #628.
(b) in subsection (1) in the definition of “excluded disbursements” by repealing paragraph (d) and substituting the following:
(d) disbursements for expert evidence, or an expert report, on the issue of liability;
(e) disbursements that all parties to the vehicle injury proceeding have
consented to allow as excluded disbursements;
(f) disbursements that the court has ordered to be excluded disbursements on
application made under subsection (6). ,
Subsection 3 is repealed. The following is now added:
(d) by adding the following subsections:
(4) The limits set out in subsection (2) do not apply to a vehicle injury proceeding if the trial date set out in the notice of trial filed in relation to the vehicle injury proceeding is no more than 3 months after the coming into force of this subsection.
(5) If the trial date set out in the notice of trial filed in relation to a vehicle injury proceeding is more than 3 months after the coming into force of subsection (4), the limits set out in subsection (2) do not apply to disbursements incurred by a party if the court is satisfied that the party necessarily or properly incurred those disbursements before the coming into force of subsection (4).
(6) On application by a party to a vehicle injury proceeding, the court may, if satisfied that the conditions set out in subsection (8) are met, order that the disbursements itemized in the order are excluded disbursements.
(7) If disbursements to be incurred for expert evidence or expert reports are the subject of an application under subsection (6) and the applicant is also making an application under section 12.1 (5) of the Act, the applicant must make both applications at the same time.
Approval is required for “disbursements” prior to them being incurred.
Failing which, a Chambers application that requires conditions to be met must be scheduled:
The Conditions that must be established to seek an Order allowing reimbursement:
(8) The following are the conditions for the purposes of subsection (6):
(a) the application is made before the disbursements are incurred;
(b) were the disbursements not excluded, the party making the application would suffer prejudice disproportionate to the benefit of not increasing the complexity and cost of the vehicle injury proceeding.
The claims excluded from this legislation are matters that will be proceeding to a trial within 3 months from the date this Order is legislated.
If a Chambers application is necessary, the following will need to be included in your materials:
(9) In an application under subsection (6), a party must include the following:
(a) the nature and the evidentiary value of each disbursement that is the subject of the application;
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(b) evidence of the prejudice the party would suffer were the disbursements that are the subject of the application not excluded, which must include
(i) evidence that there is a reasonable risk that the total amount of disbursements the party intends to incur to resolve the vehicle injury proceeding will exceed the disbursement limit,
(ii) evidence that the disbursements that are the subject of the application are necessary to justly resolve the vehicle injury proceeding in light of the complexity of the vehicle injury proceeding or the importance of the issues in dispute, and
(iii) evidence that the party would be unable, without undue hardship, to incur the disbursements that are the subject of the application were those disbursements not excluded.
(10) For certainty, this section applies to all vehicle injury proceedings, whether or not
the proceeding was commenced before the coming into force of this subsection
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