We have written about Rule 11-8 on Case Law Corner and you may want to review the articles noted below for a refresher on the limitations placed on expert evidence in the Province of British Columbia.

Articles:

Experts in Vehicle Actions

Joint Experts – Considerations

Today is an amazing day because access to justice has been served with an incredible decision of the Court setting aside this rule.

Remarkable update on this matter!  The Court ruled in Crowder v. British Columbia (Attorney General), 2019 BCSC 1824 that Rule 11-8 Order are “unconstitutional and of no force or effect.  In the result, sub Rules 11-8 (3), (4) and (5) are set aside.  In the result, sub Rules 11-8 (10) and (11) must also be set aside.

Read the case here.

Eliminating the Court’s discretionary function was one of the compelling factors the Court considered.

The limitation on experts in BC imposed a limit of 3 experts for cases valued over 100,000 and 1 expert under 100,000.  (See the above articles for further information).  The Rule did not allow an option to apply to Court to seek a Court Order for an additional expert.  There was only the option of applying to Court to seek a joint expert.  The argument raised by the Plaintiff in this claim was that it removes the Court’s discretionary function. The Rule eliminates the Court’s discretionary function to review evidence and make an Order to the contrary.  This is really an access to justice issue and it was remedied by the Court with this decision.

The Court stated:

“I find that the impugned Rule infringes on the court’s core jurisdiction to control its process, because it restricts a core function of the court to decide a case fairly upon the evidence adduced by the parties.  The effect of the impugned Rule is to require the court to play an investigatory function in place of its traditional non-adversarial role, contrary to the principle of party presentation.”

Remedy

“I declare that the Rule 11-8 Orders are, in part, contrary to s. 96 of the Constitution Act, 1867, and thus unconstitutional and of no force or effect.  In the result, sub Rules 11-8 (3), (4), and (5) are set aside.  In the result sub Rules 11-8 (10) and (11) must also be set aside.

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