British Columbia Hansard — 5 March 2020, p.m., Issue 325 (41st Parliament, 5th Session)

20200305pm-Hansard-n325

British Columbia — Debates (Hansard)

Fifth Session, 41st Parliament OFFICIAL REPORT OF DEBATES (HANSARD) Thursday, March 5, 2020 Afternoon Sitting Issue No. 325 THE HONOURABLE DARRYL PLECAS, SPEAKER ISSN 1499-2175

PROVINCE OF BRITISH COLUMBIA (Entered Confederation July 20, 1871) LIEUTENANT-GOVERNOR Her Honour the Honourable Janet Austin, OBC Fifth Session, 41st Parliament SPEAKER OF THE LEGISLATIVE ASSEMBLY Honourable Darryl Plecas EXECUTIVE COUNCIL Premier and President of the Executive Council ............................................................................................................... Hon. John Horgan Deputy Premier and Minister of Finance ...........................................................................................................................Hon.

Carole James Minister of Advanced Education, Skills and Training..................................................................................................... Hon. Melanie Mark Minister of Agriculture.........................................................................................................................................................Hon. Lana Popham Attorney General.................................................................................................................................................................Hon.

David Eby, QC Minister of Children and Family Development ............................................................................................................ Hon. Katrine Conroy Minister of State for Child Care...................................................................................................................................... Hon. Katrina Chen Minister of Citizens’ Services...................................................................................................................................................Hon.

Anne Kang Minister of Education ............................................................................................................................................................ Hon. Rob Fleming Minister of Energy, Mines and Petroleum Resources ..................................................................................................... Hon. Bruce Ralston Minister of Environment and Climate Change Strategy............................................................................................. Hon.

George Heyman Minister of Forests, Lands, Natural Resource Operations and Rural Development ..............................................Hon. Doug Donaldson Minister of Health .....................................................................................................................................................................Hon. Adrian Dix Minister of Indigenous Relations and Reconciliation ......................................................................................................... Hon.

Scott Fraser Minister of Jobs, Economic Development and Competitiveness.............................................................................Hon. Michelle Mungall Minister of State for Trade...............................................................................................................................................Hon. George Chow Minister of Labour ...................................................................................................................................................................Hon.

Harry Bains Minister of Mental Health and Addictions............................................................................................................................ Hon. Judy Darcy Minister of Municipal Affairs and Housing.................................................................................................................. Hon. Selina Robinson Minister of Public Safety and Solicitor General ........................................................................................................... Hon.

Mike Farnworth Minister of Social Development and Poverty Reduction..............................................................................................Hon. Shane Simpson Minister of Tourism, Arts and Culture.....................................................................................................................................Hon. Lisa Beare Minister of Transportation and Infrastructure................................................................................................................ Hon.

Claire Trevena LEGISLATIVE ASSEMBLY Leader of the Official Opposition................................................................................................................................Andrew Wilkinson, QC Leader of the Third Party .................................................................................................................................................................Adam Olsen Deputy Speaker................................................................................................................................................................................

Raj Chouhan Assistant Deputy Speaker............................................................................................................................................................. Simon Gibson Deputy Chair, Committee of the Whole ................................................................................................................ Spencer Chandra Herbert Clerk of the Legislative Assembly ...........................................................................................................................................

Kate Ryan-Lloyd Clerk Assistant — Committees and Interparliamentary Relations ..........................................................................................Susan Sourial Associate Law Clerk ..............................................................................................................................................Loredana Catalli-Sonier, QC Law Clerk and Parliamentary Counsel............................................................................................................................................ S.

Suzie Seo Acting Sergeant-at-Arms..................................................................................................................................................................Greg Nelson

ALPHABETICAL LIST OF MEMBERS Ashton, Dan (BC Liberal) ......................................................................... Penticton Bains, Hon. Harry (NDP)................................................................ Surrey-Newton Barnett, Donna (BC Liberal) .....................................................Cariboo-Chilcotin Beare, Hon. Lisa (NDP)..............................................

Maple Ridge–Pitt Meadows Begg, Garry (NDP) .......................................................................Surrey-Guildford Bernier, Mike (BC Liberal) .........................................................Peace River South Bond, Shirley (BC Liberal)...........................................Prince George–Valemount Brar, Jagrup (NDP).......................................................................Surrey-Fleetwood Cadieux, Stephanie (BC Liberal)........................................................

Surrey South Chandra Herbert, Spencer (NDP) .......................................Vancouver–West End Chen, Hon. Katrina (NDP)...................................................... Burnaby-Lougheed Chouhan, Raj (NDP) .................................................................Burnaby-Edmonds Chow, Hon. George (NDP).................................................Vancouver-Fraserview Clovechok, Doug (BC Liberal) ..................................Columbia River–Revelstoke Coleman, Rich (BC Liberal) ................................................................ Langley East Conroy, Hon.

Katrine (NDP)...........................................................Kootenay West Darcy, Hon. Judy (NDP) ............................................................. New Westminster Davies, Dan (BC Liberal) ........................................................... Peace River North de Jong, Michael, QC (BC Liberal) ..............................................Abbotsford West Dean, Mitzi (NDP)................................................................ Esquimalt-Metchosin D’Eith, Bob (NDP) ................................................................Maple Ridge–Mission Dix, Hon.

Adrian (NDP)....................................................... Vancouver-Kingsway Donaldson, Hon. Doug (NDP)...................................................................... Stikine Eby, Hon. David, QC (NDP).............................................. Vancouver–Point Grey Elmore, Mable (NDP).........................................................Vancouver-Kensington Farnworth, Hon. Mike (NDP) ........................................................Port Coquitlam Fleming, Hon. Rob (NDP) ......................................................

Victoria–Swan Lake Foster, Eric (BC Liberal).............................................................Vernon-Monashee Fraser, Hon. Scott (NDP) ..................................................Mid Island–Pacific Rim Furstenau, Sonia (BC Green Party) .............................................Cowichan Valley Gibson, Simon (BC Liberal) ...................................................Abbotsford-Mission Glumac, Rick (NDP).........................................................Port Moody–Coquitlam Heyman, Hon. George (NDP) ................................................Vancouver-Fairview Horgan, Hon.

John (NDP) ................................................ Langford–Juan de Fuca Hunt, Marvin (BC Liberal) ........................................................ Surrey-Cloverdale Isaacs, Joan (BC Liberal) .......................................... Coquitlam–Burke Mountain James, Hon. Carole (NDP).................................................... Victoria–Beacon Hill Johal, Jas (BC Liberal).................................................Richmond-Queensborough Kahlon, Ravi (NDP)............................................................................... Delta North Kang, Hon.

Anne (NDP)......................................................... Burnaby–Deer Lake Kyllo, Greg (BC Liberal)..............................................................................Shuswap Larson, Linda (BC Liberal) .............................................. Boundary-Similkameen Lee, Michael (BC Liberal) ........................................................Vancouver-Langara Leonard, Ronna-Rae (NDP) ..................................................... Courtenay-Comox Letnick, Norm (BC Liberal).............................................

Kelowna–Lake Country Ma, Bowinn (NDP) .....................................................North Vancouver–Lonsdale Malcolmson, Sheila (NDP) ........................................................................Nanaimo Mark, Hon. Melanie (NDP) .......................................Vancouver–Mount Pleasant Martin, John (BC Liberal)....................................................................... Chilliwack Milobar, Peter (BC Liberal)..................................... Kamloops–North Thompson Morris, Mike (BC Liberal) ........................................... Prince George–Mackenzie Mungall, Hon.

Michelle (NDP)......................................................Nelson-Creston Oakes, Coralee (BC Liberal) ............................................................ Cariboo North Olsen, Adam (BC Green Party)............................ Saanich North and the Islands Paton, Ian (BC Liberal).......................................................................... Delta South Plecas, Hon. Darryl (Ind.) ........................................................... Abbotsford South Polak, Mary (BC Liberal) ............................................................................. Langley Popham, Hon.

Lana (NDP)............................................................... Saanich South Ralston, Hon. Bruce (NDP) ............................................................Surrey-Whalley Redies, Tracy (BC Liberal) .......................................................Surrey–White Rock Reid, Linda (BC Liberal) ................................................. Richmond South Centre Rice, Jennifer (NDP) ............................................................................. North Coast Robinson, Hon.

Selina (NDP) .........................................Coquitlam-Maillardville Ross, Ellis (BC Liberal)................................................................................... Skeena Routledge, Janet (NDP) ....................................................................Burnaby North Routley, Doug (NDP) ................................................. Nanaimo–North Cowichan Rustad, John (BC Liberal) ................................................................Nechako Lakes Shypitka, Tom (BC Liberal) ..............................................................

Kootenay East Simons, Nicholas (NDP) ......................................... Powell River–Sunshine Coast Simpson, Hon. Shane (NDP)..................................................Vancouver-Hastings Sims, Jinny (NDP) ........................................................................ Surrey-Panorama Singh, Rachna (NDP) .........................................................Surrey–Green Timbers Stewart, Ben (BC Liberal) ................................................................. Kelowna West Stilwell, Michelle (BC Liberal)...............................................

Parksville-Qualicum Stone, Todd (BC Liberal)..........................................Kamloops–South Thompson Sturdy, Jordan (BC Liberal)........................................ West Vancouver–Sea to Sky Sullivan, Sam (BC Liberal)................................................ Vancouver–False Creek Sultan, Ralph (BC Liberal) ...........................................West Vancouver–Capilano Tegart, Jackie (BC Liberal) ................................................................. Fraser-Nicola Thomson, Steve (BC Liberal)......................................................

Kelowna-Mission Thornthwaite, Jane (BC Liberal) ...............................North Vancouver–Seymour Throness, Laurie (BC Liberal) .......................................................Chilliwack-Kent Trevena, Hon. Claire (NDP) ................................................................North Island Wat, Teresa (BC Liberal) ................................................. Richmond North Centre Weaver, Dr.

Andrew (Ind.)................................................Oak Bay–Gordon Head Wilkinson, Andrew, QC (BC Liberal) ................................Vancouver-Quilchena Y ap, John (BC Liberal)............................................................Richmond-Steveston LIST OF MEMBERS BY RIDING Abbotsford-Mission............................................................................Simon Gibson Abbotsford South....................................................................... Hon. Darryl Plecas Abbotsford West......................................................................

Michael de Jong, QC Boundary-Similkameen...................................................................... Linda Larson Burnaby–Deer Lake....................................................................... Hon. Anne Kang Burnaby-Edmonds................................................................................Raj Chouhan Burnaby-Lougheed .................................................................... Hon. Katrina Chen Burnaby North .................................................................................

Janet Routledge Cariboo-Chilcotin .............................................................................Donna Barnett Cariboo North.................................................................................... Coralee Oakes Chilliwack ............................................................................................... John Martin Chilliwack-Kent ...............................................................................Laurie Throness Columbia River–Revelstoke .........................................................

Doug Clovechok Coquitlam–Burke Mountain.................................................................. Joan Isaacs Coquitlam-Maillardville ...................................................... Hon. Selina Robinson Courtenay-Comox................................................................... Ronna-Rae Leonard Cowichan Valley .............................................................................

Sonia Furstenau Delta North.............................................................................................Ravi Kahlon Delta South ..................................................................................................Ian Paton Esquimalt-Metchosin ..............................................................................Mitzi Dean Fraser-Nicola .........................................................................................

Jackie Tegart Kamloops–North Thompson .............................................................Peter Milobar Kamloops–South Thompson..................................................................Todd Stone Kelowna–Lake Country .....................................................................Norm Letnick Kelowna-Mission ..............................................................................

Steve Thomson Kelowna West ..........................................................................................Ben Stewart Kootenay East.......................................................................................Tom Shypitka Kootenay West........................................................................ Hon. Katrine Conroy Langford–Juan de Fuca .............................................................. Hon. John Horgan Langley .....................................................................................................

Mary Polak Langley East.........................................................................................Rich Coleman Maple Ridge–Mission.............................................................................. Bob D’Eith Maple Ridge–Pitt Meadows............................................................Hon. Lisa Beare Mid Island–Pacific Rim................................................................ Hon. Scott Fraser Nanaimo......................................................................................

Sheila Malcolmson Nanaimo–North Cowichan............................................................... Doug Routley Nechako Lakes........................................................................................ John Rustad Nelson-Creston ................................................................... Hon. Michelle Mungall New Westminster........................................................................... Hon. Judy Darcy North Coast ...........................................................................................

Jennifer Rice North Island.............................................................................. Hon. Claire Trevena North Vancouver–Lonsdale................................................................... Bowinn Ma North Vancouver–Seymour........................................................Jane Thornthwaite Oak Bay–Gordon Head............................................................Dr.

Andrew Weaver Parksville-Qualicum.......................................................................Michelle Stilwell Peace River North ................................................................................... Dan Davies Peace River South ................................................................................ Mike Bernier Penticton ................................................................................................. Dan Ashton Port Coquitlam...................................................................... Hon.

Mike Farnworth Port Moody–Coquitlam.......................................................................Rick Glumac Powell River–Sunshine Coast....................................................... Nicholas Simons Prince George–Mackenzie....................................................................Mike Morris Prince George–Valemount ..................................................................

Shirley Bond Richmond North Centre..........................................................................Teresa Wat Richmond-Queensborough.........................................................................Jas Johal Richmond South Centre ......................................................................... Linda Reid Richmond-Steveston ...................................................................................

John Y ap Saanich North and the Islands .............................................................Adam Olsen Saanich South .............................................................................Hon. Lana Popham Shuswap...................................................................................................... Greg Kyllo Skeena........................................................................................................... Ellis Ross Stikine....................................................................................Hon.

Doug Donaldson Surrey-Cloverdale ................................................................................ Marvin Hunt Surrey-Fleetwood.....................................................................................Jagrup Brar Surrey–Green Timbers........................................................................Rachna Singh Surrey-Guildford......................................................................................Garry Begg Surrey-Newton ..............................................................................Hon.

Harry Bains Surrey-Panorama ...................................................................................... Jinny Sims Surrey South ................................................................................ Stephanie Cadieux Surrey-Whalley ......................................................................... Hon. Bruce Ralston Surrey–White Rock .............................................................................. Tracy Redies Vancouver-Fairview.............................................................. Hon.

George Heyman Vancouver–False Creek........................................................................ Sam Sullivan Vancouver-Fraserview...............................................................Hon. George Chow Vancouver-Hastings ............................................................... Hon. Shane Simpson Vancouver-Kensington....................................................................... Mable Elmore Vancouver-Kingsway..................................................................... Hon.

Adrian Dix Vancouver-Langara................................................................................ Michael Lee Vancouver–Mount Pleasant..................................................... Hon. Melanie Mark Vancouver–Point Grey ............................................................Hon.

David Eby, QC Vancouver-Quilchena........................................................Andrew Wilkinson, QC Vancouver–West End .....................................................Spencer Chandra Herbert Vernon-Monashee ....................................................................................Eric Foster Victoria–Beacon Hill.................................................................. Hon. Carole James Victoria–Swan Lake.................................................................... Hon. Rob Fleming West Vancouver–Capilano...................................................................

Ralph Sultan West Vancouver–Sea to Sky................................................................Jordan Sturdy Party Standings: BC Liberal 42; NDP 41; Independent 2; BC Green Party 2

CONTENTS Thursday, March 5, 2020 Afternoon Sitting Page Orders of the Day Committee of the Whole House.......................................................................................................................................... 11581 Bill 9 — Evidence Amendment Act, 2020 M. Lee Hon. D.

Eby Royal Assent to Bills.............................................................................................................................................................. 11607 Bill 3 — Environmental Management Amendment Act, 2020 Bill 7 — Arbitration Act Bill 8 — Education Statutes Amendment Act, 2020 Bill 10 — Municipal Affairs and Housing Statutes Amendment Act, 2020 Proceedings in the Douglas Fir Room Committee of Supply ............................................................................................................................................................ 11607 Estimates: Ministry of Education Hon.

R. Fleming D. Davies S. Cadieux S. Bond B. Stewart T. Shypitka S. Gibson D. Ashton N. Letnick S. Sullivan

THURSDAY , MARCH 5, 2020 The House met at 1:32 p.m. [Mr. Speaker in the chair.] Orders of the Day Hon. M. Farnworth: In this chamber, I call Committee of the Whole on Bill 9, the Evidence Amendment Act. In the Douglas Fir Room, Committee A, I call the estimates debate for the Ministry of Education. Committee of the Whole House BILL 9 — EVIDENCE AMENDMENT ACT, 2020 The House in Committee of the Whole (Section

B) on Bill 9; S. Chandra Herbert in the chair. The committee met at 1:35 p.m. On

section 1. M. Lee: I wanted to take this opportunity to address a few of the comments made by the Attorney General in response to our second reading speech. I think I will do that in sequence, as it comes up through the committee process. To be clear, there has never been precedent for an Attor- ney General serving at the same time as minister respons- ible for ICBC. Is that correct? Hon. D. Eby: Mr. Chair, that’s totally unrelated to the bill. I will be available through the estimates process for all kinds of conversations.

I have no idea what portfolios Attorneys General have held in this province over the years. I know, at one point, the Finance Minister was also the Attorney General. I don’t remember, when the mem- ber for Prince George–Mackenzie was Attorney General, what other portfolios she held. I think when the Finance Minister was Attorney General, he was also the minister responsible for gambling as well as Attorney General. I can advise the member, off the top of my head, it’s not unusual for an Attorney General to have multiple portfolios. I can also advise the member it’s totally unrelated to the bill. M.

Lee: The point that I was trying to make yesterday, repeatedly, through my second reading speech, was that, to my knowledge, in the history of this province, there has never been an Attorney General that has acted at the same time as the minister responsible for ICBC. When the Attorney General took us through memory lane, talked about the previous government and talked about the Attorney General in that previous capacity…. She was not serving as the minister responsible for ICBC.

What we have in front of this House is the Evidence Amendment Act brought by the Attorney General of this province, amending the rules of court for which plaintiffs can bring forward expert reports for the benefit of cost saving for the Crown corporation for which he is respons- ible, as minister responsible for ICBC. That is a question that’s very relevant to this act. The Attorney General, by bringing forward this bill, has brought forward to the floor of this House his conflict. His conflict is illustrated by this act, this bill.

The fact that the Attorney General fails to see that conflict, the fact that he fails to see the relevance of that conflict to this bill, I think, is shocking. Let me ask the Attorney General this question. What is the role of the Attorney General to protect the rights of injured British Columbians in this province? Hon. D. Eby: I’ll advise the member again that I’m totally available to him in the estimates process if he wants to ask questions about the role of the Attorney General.

If he doesn’t understand what the role is, I would advise that he start with the Attorney General Act, which sets out the responsibilities for the Attorney General. There are some very good textbooks about the roles of Attorneys General. That is not the point of committee stage on a bill related to the Evidence Act. [1:40 p.m.] I can advise the member that on many occasions, Attor- neys General, including in the previous Liberal admin- istration, have….

In fact, Suzanne Anton, when she was Attorney General, established an Attorneys General com- mittee exclusively for the purpose of making court rules with only 90 days’ notice to the chief justice. So the sugges- tion that Attorneys General should not be involved in the rules of how courts go forward…. The Supreme Court of Canada upheld the idea that provinces can set out how civil litigation proceeds — and rules and guidelines for that to happen — in relation to tobacco litigation. That’s something we mirrored in the opioid legislation. I am interested to hear the member’s questions about the act.

He has a theory, disputed by no less an authority than the Supreme Court of Canada, that the Attorney General’s role should not include putting a limit on experts or being involved in how civil litigation proceeds in the province. That is his theory. It’s an untested legal theory, and it is unique to him, I think. I’m not sure it gets us any further along in understanding this bill — the implications of it — and I welcome his questions on that. M. Lee: Mr.

Chair, I think it’s important that we fun- damentally understand why this bill is in front of this House and how it is that an Attorney General in conflict can bring forward this bill. Again, I’m not yet talking 11581

about the rules committee or the jurisdiction of an Attorney General to be able to work for the rules com- mittee or not work with the rules committee to bring forward changes to the rules of court by way of the Evid- ence Amendment Act in this Bill 9. Under the Attorney General Act — and I’m quite famil- iar with that act — subsections 2(

a) and (

b) state the duties and powers of the Attorney General in this province. “The Attorney General (

a) is the official legal adviser of the Lieutenant Governor and the legal member of the Exec- utive Council, ” and “(

b) must see that the administration of public affairs is in accordance with law. ” His primary responsibilities are set out in this act. When we talk about the administration of public affairs in accordance with the law and serving as the official legal adviser to the executive council, that is his role. I don’t see anywhere, in this Attorney General Act, sav- ing costs for ICBC. Interjection. M. Lee: The Attorney General Act is the act that we’re talking about because the Attorney General is the one who’s tabling this bill. Which hat is he wearing?

Is it his responsibility as Attorney General to this province, or is it as the minister responsible for ICBC? Let me ask the Attorney General that question: which responsibility and which ministry responsibility is he meeting when he tables this bill? Hon. D. Eby: The astounding hypocrisy of the member on the other side to stand in this place and impugn my conduct in bringing this bill forward…. His own Attorney General, Suzanne Anton, when they were in power, caused the entire rules committee to resign when she put forward an OIC to change the civil tariff and then withdrew it because of the cost impact on ICBC.

Now, when she did that, was she acting as the Attorney General, or was she acting as the puppet of the Finance Minister? What was happening there? Look. There is an obligation for the Attorney General to make sure that justice is done in the province — abso- lutely — and that it’s done according to the rule of law. What is in front of us is a proposed law, which, I believe, government has full authority to bring forward, based on Supreme Court of Canada jurisprudence about the ability of government to prescribe how civil litigation proceeds in the province. It’s also in keeping with the rules of court.

It’s rule No. 1: the just and efficient determination of disputes in the province. Here we’re talking about efficiency, proportionality — key values in the rules of court. The member is pretend- ing this is some huge abridgement of rights — unheard of, unprecedented — British Columbia being the only province in Canada that doesn’t have a limit on expert reports. [1:45 p.m.] We’re bringing in a limit on expert reports on the abuse of experts by both sides.

I apologize for sounding intem- perate, but it is a bit much to hear this kind of allegation coming from the other side — that I’m in conflict of interest; this is improper; abuse of injured people — when that member knows full well that if a person was in a single-vehicle collision and they were catastrophically injured, their lifetime benefit under their insurance scheme was $150,000. Well, ask Lorraine Tran how that worked out for her. She lives in poverty because of their insurance system — the insurance system, by the way, that I assume he is standing and defending.

With all due respect to the member, I think it would serve everybody in this place if he focused on the bill, asked questions about the bill. If he feels there’s a provision of the bill that’s unconstitutional, why doesn’t he ask a question about that provision of the bill? The Chair: Member, on

section 1 of the Evidence Amendment Act. M. Lee: Well, Mr. Chair, I don’t believe that he answered my question. We’re talking about the whole nature of the bill. I appre- ciate that, and that’s what we’re here to do. But funda- mentally, I think it’s important that members of this House understand the conflict that the Attorney General is in. It’s not an allegation; it’s a fact. Well, the complaint ought to be to how this government has structured the roles and responsibilities of the cabinet.

I believe, as we are having this discussion, that it’s a mere illustration of the Attorney General’s and the Premier’s failure to see the conflict that the member for Vancou- ver–Point Grey is in. It is endemic in terms of his com- ments in response to my second reading speech in the last debate yesterday. What we will see today, as we go through this, is a repeated theme of the struggle for this Attorney General. He has clearly lost sight of his responsibility, first and fore- most, to this province as the chief legal officer responsible to protect the rights of injured British Columbians in Brit- ish Columbia.

When we talk about the rules committee…. The reason why I focused on the rules committee in my second reading speech is because of my concern about that conflict. This Attorney General, when he brought for- ward rule 11-8, brought it forward without any consulta- tion with the rules committee. The example he gave of the previous government and the previous Attorney General was not on a matter that was substantive rights.

Rule 11-8 and what is the subject matter of this Bill 9 is a fundamental change to the manner in which plaintiffs can bring forward their cases for recov- ery of damages in motor vehicle accidents but now expan- ded to all personal injury actions — another point we’ll get to later on in this bill. 11582 British Columbia Debates Thursday, March 5, 2020

In the other example the Attorney General has given, the rules committee was consulted. The Attorney General did not have a conflict in the way that is presented here. The Attorney General plays the role as set out in the Attor- ney General Act to advise the executive council — whatever considerations were made, decisions were made. The rules committee was unhappy with the result and the decision by government. But the rules committee was involved and was consulted, in this case, on cost tariff — the determination of costs after a dispute, a case, is tried and heard and decided upon.

We’re talking about how plaintiffs, British Columbians, can access justice through our court system. This Attorney General, for this mere focus on costs for ICBC — his other hat, his other responsibility — has lost sight of access to justice. What he is doing, effectively, is taking away the rights of injured British Columbians.

I want to take this opportunity to at least respond to the Attorney General’s comments in that matter. [1:50 p.m.] The other comment that I would say: when we look at other jurisdictions in this country as having some pre- scribed rules around expert reports, there is no other jur- isdiction in this country that attempts to limit the juris- diction and the discretion of the courts in the manner in which rule 11-8 and Bill 9 are doing. It is completely dif- ferent.

The Attorney General can stand there and talk about other jurisdictions, but the fact of the matter is, in this jur- isdiction, the Chief Justice of the B.C. Supreme Court has ruled his presented change in rule 11-8, for reasons we will canvass here at committee. They’re the same concerns about fettering and restricting and limiting the jurisdic- tion and the discretion of the courts. That is still the case in this bill. It’s still the same con- cern. So again, when the Attorney General talks about the comments that I made in this House, the finding is clear.

The finding by the Chief Justice of the Supreme Court of British Columbia is very clear. To limit the number of expert reports, as rule 8 was attempting to do and is being done in this proposed legislation under Bill 9, is the same…. The Chair: Excuse me, Member. Minister of Labour, rising on a point of order. Point of Order Hon. H. Bains: I’m troubled. I’m watching, I’m listen- ing, I’m hearing, and I’m troubled by the conversation and the content of the conversation. The second reading of the bill is over. It seems to me that we’re doing the second reading all over again. We’re in committee stage.

I don’t even see which

section of the bill is being debated, what questions are being asked. So I will ask that the member be drawn to the act itself and the sections that we are debating so that we could concen- trate on the debate, just on that. The Chair: Thank you, Minister. The Chair will take that under advisement. Member for Vancouver-Langara, you’re just reminded to draw your discussion back to

section 1 of the Evidence Amendment Act. Debate of the pros and cons of the bill did occur in second reading, and I would ask that we try and draw our comments and questions to the bill itself. Thank you. Debate Continued M. Lee: I appreciate the point of order and your guid- ance, Mr. Chair, in that regard. Appreciate the opportunity to respond to the comments of the Attorney General in his conclusion on the second reading. Certainly, Mr. Chair, we will pick up the additional points that we’ve had some exchange on, with your assistance, as we look at the specif- ic provisions of this bill. Having said that, on

section 1, could I ask the Attorney General the purpose for which, in

section 3 of the bill, there are changes being made to various sections relating to vehicle injury damages being personal injury damages and the like? The Chair: If I might, Member. We are still on

section 1. If the member does have questions for

section 3, I would suggest that we ask them there, unless members would like to pass sections 1 and 2. Then we could ask questions on

section 3. Are there any further questions on

section 1? M. Lee: Okay. Well, let me ask this in terms of the nature of

section 1 and this bill. Since this bill is being brought pursuant to, in the aftermath of, the Crowder decision — rule 11-8 — can I ask the Attorney General the purpose for which Bill 9 is being tabled in this House? Hon. D. Eby: This bill is intended to ensure the just, speedy, efficient and proportionate resolution of civil claims related to automobile collisions. M. Lee: So in terms of the actual ruling by Mr. Justice Hinkson, have those considerations been incorporated in the manner in which the Attorney General described this bill? [1:55 p.m.] Hon. D.

Eby: We believe the proposed act is responsive to the concerns raised by the court in that decision. M. Lee: What assessment has the Ministry of Attorney General done in terms of the potential for further consti- Thursday, March 5, 2020 British Columbia Debates 11583

tutional challenges on the same grounds that were set out in the Crowder decision? Hon. D. Eby: The member will have to clarify what he means. M. Lee: In the Crowder decision, there were concerns raised regarding the inherent exclusive jurisdiction of the court — the concerns around the limitations in the way that it was set out in rule 11-8. As we walk through — and happy to do so — the various decision points by Chief Justice Hinkson…. He had concerns regarding that attempt to restrict the jurisdiction of the court.

When the Ministry of Attorney General looks at this Bill 9 and considers the limitations still on judicial discre- tion…. Has there been an assessment made by the lawyers in the Attorney General, advising the member for Vancou- ver–Point Grey in his capacity as the Attorney General of this province, on whether there are still points of challenge with this bill and how it is amending the Evidence Act and whether that will be challenged on the similar grounds as were challenged in the Crowder decision on rule 11-8? Hon. D.

Eby: I do not have any such concerns that the bill is unconstitutional, if that’s what the member is sort of circling around. If he’s asking whether I’m presenting legis- lation in this place that I believe is unconstitutional, the answer is no. The member is welcome to ask that on any bill I intro- duce or any bill any member on this side introduces. I’ll give him an honest answer, including if I believe the bill is unconstitutional and still being introduced. I think that happened once federally in recent memory. I have no reas- on to believe that this bill is unconstitutional.

I believe it corresponds and responds to the reasons that the chief justice gave in the Crowder decision. There is discretion for the court — when we get to that section, we can go through it in some detail — where justice requires additional experts, giving the court the authority to allow additional experts. I look forward to getting to that section. M. Lee: I appreciate the response from the Attorney General in respect of this bill.

As I mentioned in my com- ments to date, there are considerations regarding the con- cerns around the limitation on expert reports under rule 11-8, which are very similar to — for reasons that we will get to on this committee debate on this bill — concerns in respect of this particular bill. So keeping that in mind, I ask: was the Attorney General provided the same level of advice and assessment by his ministry lawyers, in terms of constitutionality, when the government proceeded with rule 11-8? Hon. D. Eby: I’m not going to waive privilege over legal advice I’ve received.

Suffice it to say that I believe this bill is constitutional. What I will say is: not helpful for the mem- ber to say that there are considerations about concerns and considerations that are concerning. What are they? Let’s get to the section. Tell me what

section in here the mem- ber believes is unconstitutional. Let’s have that discussion. Very hard for me to respond about concerns about con- cerning considerations. M. Lee: Well, we certainly will get to that on a section- by-section basis. I believe that I took the time to set out those concerns in my second reading speech yesterday. But happy to draw the Attorney General’s attention to that as we go through the sections of this bill. If I can also ask, in terms of the bill in front of us, what level of consultations were had, if any, with the rules committee? [2:00 p.m.] Hon. D. Eby: None.

This is the Evidence Act, so we did consult with the Chief Justice of the B.C. Supreme Court. M. Lee: Is it the view, then, that in respect of the requirements that the Attorney General is under, he has met his obligations for consultation? Hon. D. Eby: Y es. The Chair: Member, on

section 1. M. Lee: What is the estimated savings to ICBC that the Attorney General, in his capacity as minister responsible for ICBC, would indicate to this House is the cost saving for this measure under Bill 9? Hon. D. Eby: A very good question for estimates. I don’t have staff here from ICBC today. This is an Evid- ence Act bill. M. Lee: Well, I think we will have that discussion, then, at estimates, in terms of the level in which ICBC estimates, in terms of their cost saving, by limiting the rights of injured British Columbians….

I know that in the Crowder decision, as I indicated yesterday, it has been estimated to be $400 million, of which $200 million would be based on lower court settlements. The comment that was made…. The fewer expert reports, the lower the claim cost. Be that as it may, if we turn to

section 1, can the Attor- ney General explain the rationale in terms of limitation on expert reports — the difference and the setting of one expert report for fast-track vehicle injury proceedings versus other types of vehicle injury proceedings? Hon. D. Eby: One of the key values as Attorney General that I have in relation to the justice system is that British Columbians have the right to an efficient, speedy and just determination of their disputes. Part of that is the value of 11584 British Columbia Debates Thursday, March 5, 2020

proportionality — that the amount of process involved and the costs involved with a claim should be proportional to the amount that is at issue in the claim. In fast-track proceedings, usually the value of the claim is $100,000 or less. Therefore, the number of expert wit- nesses, which we know — I assume we all know, but I don’t know that to be certain; I assume the member knows this — are quite expensive. So when you end up having to pay 20 or 30 or 40 or 50 or 60 percent of the value of the claim on process, then justice is denied.

This value of proportionality is very important, and it is why the member will see, in this bill, different numbers of experts depending on the value of the claim. It’s an attempt to ensure that people have access to resolve their disputes in a way that’s affordable, efficient and just. The member will see similar provisions in Common- wealth jurisdictions, including in Canada, because this value of proportionality is not, by any means, unique to British Columbia or to this bill. M. Lee: When we see language in

section 1 of this bill — for example, in 12.1(2)(a)(i) — around expert evidence on the issue of vehicle injury damages…. The use of the term “damages, ” of course, is explicit and presumably intention- al in its nature, as opposed to liability. So the purpose for this limitation on expert reports, then, would not extend to expert reports that are necessary for a determination of liability. Is that correct? Hon. D. Eby: That is correct. [2:05 p.m.] M. Lee: So if I could ask the Attorney General what the purpose of that distinction is. Hon. D.

Eby: I’m advised that it’s common for liability issues to not really recommend themselves to any partic- ular number of reports, and they can be quite complex in terms of the engineering reports and so on that are required to determine liability. So that is the reason for leaving these out and focusing on, essentially, medical-leg- al types of reports in litigation. M.

Lee: I know that the information we were provided at the technical briefing on this bill, myself and the mem- ber for Richmond-Queensborough, was that the focus will be on solely medical reports and that expert reports for crash analysis or demonstrating liability certainly would not be caught within this bill. Are there other forms of expert reports that are contemplated under this bill in terms of expert evidence on, as the words say, the issue of vehicle injury damages? Hon. D. Eby: Could the member just clarify that ques- tion? Is he asking what reports other than doctors’? I didn’t quite follow his question.

M. Lee: Y es. In effect, what other types of reports would there be, other than medical reports from doctors? Hon. D. Eby: The other types of expert reports that may be captured by this limit of three include cost of future care reports, economist reports, life planner reports, vocational care reports or occupational therapy reports. M. Lee: There is also reference to elements around caus- ation here. That is, parties must prove, in a negligent action, that there was causation. Those experts who are retained to opine strictly on causation — are they caught in any way within the limitations set out in this act?

Hon. D. Eby: It depends on the kind of causation the member is talking about. If you’re talking about medical causation, that the injury that resulted from the collision caused a certain outcome in the individual, then that would be captured by the limit. But if the member is talk- ing about causation as in who caused the accident, who is liable for the damages, then it would not. M. Lee: The limitation on expert reports.

The Attorney General did acknowledge, in respect of ICBC, that there is no similar application of this to limit the number of expert reports for recovery to ICBC. [2:10 p.m.] I’ d like to ask if the Attorney General has had any fur- ther opportunity to consider that point and whether there is any view to be looking at that further in terms of how these rules might also apply to ICBC. Hon. D. Eby: Y es, these rules do apply to ICBC. M. Lee: In terms of that, when ICBC is the successful party, then they’ll be able to recover their costs in any action. Is that correct? Hon. D. Eby: Up to the limits. M.

Lee: Is there any concern the Attorney General sees in respect of the difference in financial position between a plaintiff and ICBC, in terms of their ability to obtain expert reports but not need to recover the costs of those expert reports — that ICBC is in a better financial position to be doing that vis-à-vis any individual plaintiff? Hon. D. Eby: It may be helpful for the member to have some background on the issue of costs and disbursements, which is that they’re never intended to provide full indem- nification.

Disbursements are always limited to those that are necessarily or properly incurred in the course of litiga- tion and for a reasonable amount. As the member knows, litigation typically has a cost, which is significant, and some of which is never recovered by even the successful party. The purpose of this is actually Thursday, March 5, 2020 British Columbia Debates 11585

to encourage more proportionate spending so parties will be fully indemnified or close to it in terms of their com- pensation. There are, certainly, some pieces that we put in to ensure that people are protected in the transition period. In the regs, we will have this. The court will have discretion to disapply the 5 percent cap where a notice of trial was filed and served before February 6, 2020 for a trial after Octo- ber 1, 2020, but the party properly incurred disbursements in excess of 5 percent before February 6, 2020. Certain things will be excluded from the 5 percent cap as well.

This is what I assume the member is asking about. Such things are fees payable to the Crown and sheriff, things like filing fees, court fees, jury fees, disbursements where costs are assessed as special costs, and disburse- ments for expert reports on liability where the court orders that they be excluded from the 5 percent cap. M.

Lee: I appreciate the response from the Attorney General and certainly, as I spoke to in my second reading speech yesterday as well, recognize that under the existing rules, recovery of costs is subject to reasonable and proper and appropriateness, and that determination is made, cer- tainly, under our existing rules. The point that I was trying to get at, too, with the Attor- ney General was really about the unlevel playing field con- cern in respect of….

Even though the Attorney General has confirmed that the same limits on recoverability apply to ICBC, ICBC is in a better financial position in terms of the number of expert reports, the amount that it’s prepared to pay for an expert report and the amount of disburse- ments that ICBC is prepared to incur in respect of any action because of their financial position, versus a plaintiff who now is being limited in their ability in terms of the number of expert reports they can bring on and tender during that action. [2:15 p.m.] The costs for each individual expert report would be limited to $3,000, and their overall disbursements would be arbitrarily limited to 5 percent.

Does the Attorney Gen- eral see a concern around the unlevel playing field that this bill presents to plaintiffs in British Columbia? Hon. D. Eby: Of course ICBC will exercise due dili- gence in expenses on files, including expert report costs. I want to point out to the member — we haven’t gotten to this

section yet — but of course ICBC and plaintiffs can explore the use of joint experts that don’t have this limit on recoverable amounts. We’re actually encouraging people, as the previous government did in family law…. They lim- ited experts and had court-appointed experts, two things that the member railed against in his second reading speech — actually done by the previous government in the family law venue. In any event, I digress. This omission of joint experts from the limit was deliberate. We want people to identify non-adversarial experts to assist in valuing claims.

So if the member is concerned about that level playing field, certainly there are opportunities to have experts outside of the limit on experts and the limit on recoverable amounts — the number of expert reports and so on. If the member wants me to defend the litigation system as a great way for people to resolve their disputes with ICBC, I won’t do it. We are transitioning to a new way of doing auto insurance in the province precisely because of the problems with the current system.

I mean, for someone to have to borrow money from their lawyer for a two-year litigation battle with ICBC, who is both supposed to be providing care for that person and, at the same time, hiring the lawyer for the person who hit them in the crash — to say, “Well, maybe it’s the per- son who was injured; maybe it was their fault; maybe they were driving badly; maybe they’re not as injured as they seem” …. That system is not a good system.

We’re trying to address some of the excesses of the system as a transition to a better way of doing insurance — providing peace of mind to British Columbians, bet- ter benefits, lower costs and getting rid of legal costs in the system. I hope that goes some way to addressing the member’s concerns about a level playing field. We have an unam- biguous agenda here, which is to discourage this adversari- al experts system, where there are these groups of plaintiff experts and this group of defence experts…. The Globe and Mail did an excellent exposé on some of these experts. It’s incredibly problematic.

I certainly hold ICBC as responsible as the plaintiff bar for cultivating this network of experts on either side. We can address this as a province by encouraging people to retain joint experts, an expert that both sides have confidence in to assess claims. Those experts are exempt from the limitation on recoverable amounts. M. Lee: We will talk about the retroactive nature of this bill to come when we get to that particular section. But to be clear, for the purpose of this bill, the con- sideration ought to be for the outstanding lawsuits that ICBC is involved with.

Because those lawsuits are being affected by the changes in rules on expert reports that this bill presents — just to be clear about the impact of these restrictions and the unlevel playing field concern that we’re talking about. It may be one thing to talk about the bill that the Attor- ney General introduced into the House yesterday for no- fault. That discussion will come, but in this case, we are talking about this bill — limiting expert reports in the manner that is set out in this bill.

I’ d ask the Attorney General if he could answer the ques- tion as to: what is the estimated number of lawsuits that will be affected by this bill? [2:20 p.m.] 11586 British Columbia Debates Thursday, March 5, 2020

Hon. D. Eby: In terms of an exact number or even an approximate number, it’s difficult to say. I think there are about 90,000 claims in the system that predate today. There will be some more collisions between now and the imple- mentation of the new system on May 1 of next year. For all of those files, they could potentially fall under these rules, with the caveat that there are transition provisions within the bill. So some will not be captured within this, and some will be. In terms of the pool of potential files, it’s about 90,000 active files right now, but all of those will not be captured in the same way.

M. Lee: It’s the 90,000 files that, as the Attorney General acknowledged, are being potentially affected depending on their status, depending on their trial date, depending on whether they go to trial, how far they go along this litiga- tion process. There will be, certainly, other claims that may well be affected to come. The nature of this is significant in terms of the number of British Columbians that will be affected by this rule change.

To come back to the question around unlevel playing field, we’re talking, as well, about British Columbians that have, with legal counsel, entered into litigation proceed- ings under the current rules and have relied upon that sys- tem and now are having the rules change, which will affect their ability to bring forward their full claim for full recov- ery of damages relating to their motor vehicle accidents. That is the concern here. And that in the course of that, ICBC is in a much better financial position. They have a lot more at stake here.

These dollars are meaningful, certainly for individuals, and they have a lot at risk. They don’t have the financial ability to take that risk. Is there a concern…? When the Attorney General uses the word “agenda” or “aim” or “objective, ” is the objective of this bill to encourage earlier settlements of those 90,000 lawsuits? Hon. D. Eby: The vast majority of these claims, if his- tory is any guide, will settle before they go to court. Far in excess of 95 percent of them will settle. I want to clarify one of my earlier responses. I said that there were about 90,000.

I’m told there are actually 95,000 active injury claims with ICBC; however, only 48,000 of those are actually in the court system right now. Just a little bit more clarity. I got new numbers from staff here. I hope that assists the member with his understanding of the bill. M. Lee: I’ d still look for a further response from the Attorney General in respect of the concern around the dif- ferent financial position under these rules and the impact on injured British Columbians. Does the Attorney General see that as being a concern — that we’re changing the rules?

Even if we’re talking, for discussion purposes here, 48,000 active lawsuits in court proceedings. Certainly, for those 48,000 court proceedings, they have relied upon dif- ferent rules. Now we’re changing those rules. Does the Attorney General see the concern that this is effectively creating an unlevel playing field between those plaintiffs in those 48,000 lawsuits with ICBC? Hon. D. Eby:I don’t acknowledge that.

This bill is inten- ded to encourage plaintiffs and defendants in personal injury matters related to vehicle collisions to retain joint experts and to move away from the adversarial system. [2:25 p.m.] What I do acknowledge is that the system as a whole is not a good one, in the sense that if you’re injured in a colli- sion, the last thing you need is a two-year court battle and to start borrowing money from your lawyer at 10 percent to fund litigation through that two-year period and then to give up a third of your award at the end to contingency fee.

It’s not good for drivers who pay their insurance and pay for lawyers on both sides, expert reports on both sides, all of the disbursements on both sides. It’s not a good sys- tem for administrative efficiency or for peace of mind for British Columbians. I won’t defend it, because we’re moving away from it, if that’s what the member is wondering. But I will say that this bill that I put forward has an objective. It has an intention and an agenda, which is to move away from these adversarial experts. If you still want to use adversari- al experts, you can. Y ou can use up to three.

Y ou can use more on the issue of liability, and the maximum amount you can recover is limited. I do want to talk a little bit about what the member is calling the retroactivity of the bill. The member will know, and in fact he mentioned it in his question, that we had legislation limiting the number of experts. I was very clear, held press conferences, media events. I spoke to the bar. Our intention was to limit adversarial experts in the system. We introduced legislation. It was challenged in court. It was in the news.

When we lost, I announced that it was government’s intention to go back and study the decision and find a way we could limit those adversarial experts. The bill, no surprise to anybody, came forward again.

Despite all of that press and all of that sky-writing that it was government’s intention to limit adversarial experts and expenses related to adversarial experts and to move people towards joint experts in civil litigation, especially in automotive collisions, we still said: “Maybe, before Feb- ruary 6, before we announced this latest bill, maybe you didn’t know that we were going to do this. ” We said: “Before that date, maybe you didn’t know that new limits were coming, and maybe you would’ve been conducting yourself according to the old way of doing things.

We also wanted to make sure, though, that you didn’t have a big race down to the courthouse to get filed. So the amendments refer to steps already taken by Febru- ary 6. ” Thursday, March 5, 2020 British Columbia Debates 11587

I want to give the member an example of a race to the courthouse. When the minor injury cap on non-pecuni- ary losses was introduced, there was a rush to file cases before the new limits applied. In one instance, a single law- yer filed over 300 notices of civil claim in a single day. As it happens, they didn’t avoid the new limits, but it created a lot of work for registry staff. Our data on filings shows two significant spikes in claim filings — one in January of 2018, which was around the date of the product reform announcements, and another in March 2019, which was when the minor injury caps took effect.

In both cases, the data showed filings were twice as high as normal monthly volumes. The member, I’m sure, can appreciate why we would require steps to be taken by February 6, but I think the member can also understand that people might have had a notion that government would be introducing legislation this session to, again, attempt to rein in this practice of the use of adversarial experts in personal injury litigation. M. Lee: I appreciate that we’ll have an opportunity to more thoroughly canvass the concerns around ret- roactivity and what British Columbians are reasonably expected to do.

I’m not sure that British Columbians, in the face of the decision on October 24, 2019, would have thought: “Well, this rule 11-8, the rule on the constitution, was thrown out by the Chief Justice of the Supreme Court of British Col- umbia. ” I’m not sure they would have said: “Oh, well, you know, despite what the government says, it’s going to come forward still. ” I don’t know that the writing in the sky or the notion that that might occur is something that we’re asking British Columbians to rely on. It’s also the reason why this bill is in front of this House.

I don’t think we expect British Columbians to conduct their affairs based on press releases, based on what is said, because sometimes, as we know, what is said is not actually what is done. I want to come back, though, to the other agenda here that the Attorney General has been speaking to, which is around joint experts. [2:30 p.m.] I appreciate that, certainly, in areas of family law and other areas, we continue to find ways to bring about bet- ter ways to resolve disputes, particularly in the family law context.

But we are still, for those 48,000 lawsuits — and potentially others, to get to the 95,000 — under the current rules. I’ll just ask this question because we’re having this dis- cussion, so just to keep that in mind. In terms of joint experts, what is the understanding of the Ministry of Attorney General in terms of the use of joint experts in motor vehicle claims and lawsuits? Hon. D. Eby: Just briefly to the member’s lead-in to the question. We don’t expect members of the public to con- duct themselves according to any kind of press release or anything else government does.

That’s why we accept past loss, and that’s why we set out February 6 as the date. I was just saying to the member that this didn’t come out of nowhere. It shouldn’t have been a huge surprise to any- one. We telegraphed this in several different ways. Despite all of that telegraphing of our intention to do this, the date is still February 6. [S. Gibson in the chair.] Now, with respect to the member’s question — what is our understanding of joint experts in personal injury claims related to automotive collisions? I don’t know what that means. M.

Lee: Just to rephrase the question for a better understanding: what is the use…? How frequently are joint expert reports utilized in motor vehicle injury claims and lawsuits? Hon. D. Eby: The rules do currently allow joint experts in all litigation. However, there is no incentive to use joint experts, and our understanding is they are used very infrequently. However, we do not have statistics about exactly how many files use joint experts. I would guess that it would be a very, very low number indeed. What we’re attempting to do with this bill is to incent and encourage the use of joint experts. M.

Lee: Well, that is my understanding as well, that today, under the current system and the rules, there is a very low or infrequent use of joint experts. I think it is, at least for this discussion, helpful to understand the true objective and agenda as the purpose — at least one of the purposes — of this bill. It would leave situations where, when you’re limited on cost recovery, on the number of expert reports that you can receive recovery for, and then the dollar figure…. As the Attorney General has indicated, that limit doesn’t apply to joint experts.

Can I ask the Attorney General, though: in the context of a motor vehicle injury lawsuit, what are the challenges that the Attorney General has seen or understands to be the case with the use of joint expert reports? Hon. D. Eby: The challenge has been that there’s no incentive to use joint experts, and therefore, people don’t use them.

This results in the cultivating of and expansion of a network of plaintiff experts and a network of defense experts, which, to my opinion, are of limited assistance to a judge. [2:35 p.m.] To have one expert come up and say “black” and the other expert come up and say “white” — what is the benefit that either the court or the participants get from that? If you have an expert that both parties agree is somebody 11588 British Columbia Debates Thursday, March 5, 2020

who is expert in the field and is jointly retained to provide an opinion, there’s great assistance in that — in fact, so much assistance that it may set settle the claim. The issue is the significant and growing expenditure on adversarial experts by both sides — delayed justice, inefficient process, unresolved and unsettled disputes that should be settled. There are many costs associated with the failure to use joint experts. There are costs associated with a lack of proportionality, as well, between the use of experts and the actual value of the claim. M.

Lee: There are a number of points that we could pick up in the Attorney General’s response. But just on the last one. When it is the concern of the Attorney General that there are a number of costs that are incurred that get away from proportionality, how does the Attorney Gener- al see that concern being dealt with differently from what’s already set out under rule 1-3 of the Supreme Court civil rules? Hon. D. Eby: The new bill provides an incentive to use a joint expert. M. Lee: Well, I’ll only say that proportionality is dealt squarely within rule 1-3(2) of proportionality.

That states: “Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far as is practic- able, conducting the proceeding in ways that are propor- tionate to (

a) the amount involved in the proceeding, (

b) the importance of the issues in dispute, and (

c) the com- plexity of the proceeding. ” This is in context or in relationship to the object of the rules themselves, which is to secure the just, speedy and inexpensive determination of a proceeding on its merits. Again, I ask the Attorney General, when he talks about proportionality and the importance of that, why isn’t that already dealt with fundamentally front and centre within the Supreme Court civil rules? What is lacking in rule 1-3? Hon. D. Eby: I agree with the member. I mean, the object of the rules is the same as the object of this bill.

Our objective here is to be, so far as practicable, conducting the proceeding in ways that are proportionate to the amount involved, the importance of the issues and the complex- ity of the proceeding. That is exactly the intent behind this bill. So it shares an intent with the rules. The rules themselves are silent on any kind of limit on the number of expert reports, and motor vehicle collisions do not, as I say, provide an incentive to use those joint experts. So this is a complement to the objective of the rules. M.

Lee: Well, I know that we will come back to the Supreme Court civil rules and how the current system works. But I did want to at least address proportionality, and I believe the Attorney General has acknowledged that framework. Turning back to joint experts, I hear, in the Attorney General’s response to my questions, that there are cer- tainly cost concerns, and the Attorney General speaks to the need for providing an incentive.

Well, that is a dif- ferent way of turning this bill, in terms of how it’s being presented. [2:40 p.m.] It’s providing an incentive by penalizing, limiting, constraining plaintiffs for utilization of expert reports, both in terms of number and cost and in recovery of dis- bursements. That is certainly a stick methodology; it’s certainly not a carrot. It is forcing plaintiffs to do some- thing that I don’t hear from the Attorney General, which I would ask in a moment. I hear this is all being driven by cost concerns.

Are there any other reasons for which the Attorney General, by presenting this bill, is seeking to provide the incentive — in his words — to plaintiffs for using joint experts? Is there any other reason besides cost? Hon. D. Eby: I would add to the issue of costs — and, frankly, costs on both plaintiff and defence sides when experts and adversarial experts are abused in the system — the reputation of the justice system as a concern.

I don’t think it does the justice system any favours — and ICBC wears this one — to have an expert whose office is above an airplane hangar, who doesn’t see the person involved in the litigation before issuing an expert report about their medical condition. Then it shows up in the Globe and Mail.

I don’t think people read that and think: “Gosh, the justice system sure seems to be working well. ” I think they read that, and they say: “What the heck is going on down there?” So I would say that one of the benefits of encouraging people to use joint experts, experts that are respected by both sides as being expert, in the process — getting that opinion and making a decision about whether or not to go to court based on that — is that of a lot of people saying: “Y eah, I think that’s the way the justice system should work. ” If there’s a legal issue to be determined, the judge is now in place to do that, with an expert opinion that is relied on by both parties.

I think that we can’t take too lightly the concern of the public around the cost of going to court. When they see a lawyer’s bill where, of $248,000 paid out by the insurer, 70 percent of that goes to administration costs, 30 percent goes to the plaintiff and $84,000 of that goes to expert reports, they say: “What the heck is going on down there?” I think that public confidence in how the system works is a really important value, and this bill responds to that. It says: “Here, we’ve got this problem. ” It’s not a problem that I made up; it’s not a problem that someone else made up.

This has been a problem that was widely discussed in the legal world for many years. Thursday, March 5, 2020 British Columbia Debates 11589

From a civil rules review committee, established by the previous government, one of their key recommendations was: “ Address the abuse of adversarial witnesses. ” It’s one of their key recommendations — totally unacted on, in my opinion, by the previous administration, despite the fact they had assembled this civil rules working group to advise on how the civil rules should be reformed. So it’s a widely recognized concern, a concern that’s raising pub- lic concerns about the administration of justice, a concern that is corroding public confidence in the administration of justice.

It’s a bill that attempts to address that, as other juris- dictions across Canada and other Commonwealth juris- dictions have, in ways that are both more lenient and far more significantly constraining than what’s proposed here. Just look at the U.K. rules or the Australia rules around resolving automobile tort claims, and you’ll see that we fall somewhere in the middle — in fact, much closer to the lenient side. The member…. I hear in his tone, you know: “How dare…? Costs? Just costs?

Really?” But costs have this impact on public confidence in the justice system, how it’s working, how efficient it is, who has access to court, who doesn’t. It’s important to address those issues. [2:45 p.m.] M. Lee: Well, there’s a lot to address, certainly, in the comments from the Attorney General. Just focusing on joint expert reports, I’m still not hearing the considera- tions around how they actually function under our cur- rent system.

I understand that there is encouragement — incentive — to utilize joint expert reports, but as the Attor- ney General acknowledged, they’re very seldom used in our current system. Again, there is consideration around why that is. When we look at considerations around the adversarial system, expert reports are being provided by the plaintiff to support their case. The unlevel playing field that we’re talking about, which is backed by ICBC on the other side of this, would not see joint expert reports being utilized. It’s because there is an imbalance of power there; there’s an imbalance of resources.

This bill is merely feeding that imbalance. It’s forcing plaintiffs to utilize a mechanism that hasn’t been utilized in the past, and there are reasons for it. There is what Chief Justice Hinkson referred to in his decision around concerns for litigation privilege. The use of expert reports on a joint basis would have concerns raised, in a similar manner, that you’re unfairly requiring and incenting plaintiffs to have to put forward their case in a manner that is prejudicial to their own interests.

Does the Attorney General see any concern relating to the for- cing of joint experts on plaintiffs under this bill in respect of the ability of that plaintiff to bring on their case in a way that still preserves litigation privilege? Hon. D. Eby: I’ll just remind the member that litigation privilege is not absolute. There are restrictions on it. If you want to use an expert report at a trial, you have to deliver it 84 days before trial. The court can order the disclosure of names of witnesses and summaries of their evidence.

If you do want to maintain litigation privilege forever, you can do it by not tendering expert evidence at trial and just using it in preparation. But if you want to use it in trial, then there are limitations on that privilege. I want to point out as well that we’ve had ten years now of joint experts in the family law field. They’re working well. The administration of justice is the better for it. We’re hopeful that joint experts can have a similar salutary effect in the litigation world as well. M.

Lee: Well, I appreciate, in terms of the response, at least the acknowledgment of the concern regarding litiga- tion privilege. Having said that, it still is fundamental, in terms of the incentive that’s being set out here in this bill, that it effectively will force plaintiffs to be limited in the way that they can access expert reports and in that being not a viable option.

If I can ask about the movement here, in terms of looking at expert reports themselves…. [2:50 p.m.] There is a subcondition in subsection (6) which requires that “the subject matter of the additional evid- ence…is not already addressed by expert evidence per- mitted under subsection (2) or (4). ” If there is a joint expert under subsection (3) that covers a particular sub- ject matter, does that preclude the ability to introduce additional expert evidence? Hon. D. Eby: I think this may be responsive to the member’s question. Joint experts are exempt from all of this.

I’m not 100 percent sure, but I think that is respons- ive. M. Lee: Thank you for that response. In terms of the condition under sub (6)(a), the condition I’m referring to, it refers to subject matters already addressed by experts, without specifying whose experts. Giving an example here, if the first party has an expert that covers the subject mat- ter of, say, headaches or head injury, but the other party wishes to obtain an expert that also covers that same head injury, does this provision in sub (6) prevent the second party from retaining their own opposing expert? Hon. D.

Eby: The subsection refers specifically to (2) or (4). Joint experts are (3), and they are excluded from this provision. It’s only (2) and (4), not (3). M. Lee: I appreciate the answer and the previous answer that was given relating to joint experts. I’m referring at this point to any expert. Hon. D. Eby: Okay. If a plaintiff brings a headache expert, the defence can also bring a headache expert to 11590 British Columbia Debates Thursday, March 5, 2020

respond, but it would count as one of their three expert reports. M. Lee: Sub (6) relates, of course, to sub (5), which is the application which a party to a vehicle injury proceed- ing may make to the court. If the court is satisfied, then the court can grant leave to allow, in effect, additional expert reports to be tendered and obtained.

When we talk about sub (6)(a), the condition for which that application can be made and court can grant leave is conditional upon sub (6)(a), which is “the subject matter of the additional evidence to be tendered is not already addressed by expert evidence permitted under subsection (2) or (4). ” [2:55 p.m.] Again, I’m just querying, as the Attorney General just raised….

If there is one party, say the plaintiff, who has tendered a report — or has a report, as part of his or her three — on head injury and headaches arising from that head injury, and the defence would like to have an addi- tional report on the same subject matter as per the lan- guage of sub 6(a), does that preclude the court from grant- ing leave for that additional expert report, pursuant to sub (5)? Hon. D. Eby: I think that we’ve narrowed it down, and hopefully I can be responsive to the member’s question. Subsection (6) refers to your own evidence — so the same party evidence.

It doesn’t refer to if the other party has done something. I’m hopeful that that clarifies things for the member. M. Lee: So as we look back at the provision under sub (2)(c), it’s worded that the party must not allow a party “to tender expert evidence at the trial of a vehicle injury pro- ceeding if doing so would result in exceeding the limits set out in this subsection. ” So sub 12.1(2). When we set that out, how does that affect what follows in sub (4)? That doesn’t have any exclusion from the language as do other sections, in terms of reference back to sub 2(c). Hon. D.

Eby: At the very beginning of sub 12.1(2), it says: “Except as provided under this

section or the regu- lations. ” So it sets out the general rule. The general rule is that you’re limited to this number of experts: in this kind of proceeding, you’re limited to this number expert reports on this type of proceeding, and the court shouldn’t allow any more. That’s the general rule. Then the exceptions come: “Except as provided under this

section or the regulations. ” These are the exceptions. The exceptions start with subsection (3), which relates to a joint expert, and subsection (4): “With the consent of all other parties” to the proceedings. If you get everybody else’s sign-off, you can add additional experts above and beyond the limit. So (3) is one exception, an exception for joint experts, and (4) is another exception, an exception for agreement of all parties. M. Lee: In terms of sub (4), that is another avenue for which, with consent, a party may tender additional expert reports that are not subject to the limits.

Under this cur- rent system, if I could ask the Attorney General, how often is the mechanism, for which consent is provided by both parties for expert reports, in a similar way as to what this is set out? [3:00 p.m.] Hon. D. Eby: Under the current system, you can call as many experts as you want, so there’s no need for con- sent. In terms of the proposed change here, consent typ- ically would be arranged by counsel before the trial, and there would be cost consequences for failing to consent to a reasonable request from counsel on the other side.

Typic- ally it’s done in writing, and if the court asks, you just stand up in court and say: “Y eah, we’ve consented to this extra expert evidence. ” I hope that addresses the member’s question. M. Lee: Recognizing and acknowledging that there is no need for consent to be obtained under the current rules because there’s a limit on expert reports, under this bill, what is the expectation that the Attorney General would have as to how this consent process will work between the two parties? Hon. D.

Eby: Just like any other consent process between parties to litigation, it would be speaking in advance of any trial about trying to resolve issues and so on. There would be a request, I assume, by one party to add additional expert evidence with an explanation of why it’s needed. Consent would either be given or it would not be given by the other party, noting that unreasonably refusing would potentially lead to cost consequences. M.

Lee: Again, in terms of how this might be utilized, are there any concerns that the Attorney General sees as to the position this puts the plaintiff party in, in terms of this mechanism, in having to enter into discussions with the other party as to the nature of their claim and the theory of their claim and the strategy that they’re going to bring forward? Would this effectively lead to prematurely preju- dicing the case of the plaintiff him- or herself? Hon. D. Eby: The safeguard is in this same section. It’s subsection (5).

If one party — and this rule applies equally to both parties — unreasonably refuses consent, the party who received that refusal would apply to court. The court would consider whether there’s a reason to allow the addi- tional expert evidence and then would order that it be allowed or not. Thursday, March 5, 2020 British Columbia Debates 11591

M. Lee: I’m just trying to break down the various aven- ues for which plaintiffs can seek to recover their full dam- ages here. We’ve talked about the use of joint experts and the incentive that this bill, from the Attorney General’s point of view, will create. We will get to the court-ordered process under sub (5) and sub (6) and sub (7) in terms of the nature of that application to the court.

Just coming back to consent again, though, is there a concern as to how workable, in the nature of these current proceedings, the outstanding claims that are in front of various courts in this province — that we’re providing for a mechanism here under sub (4) that really is not all that workable for plaintiffs? Does the Attorney General see that as being a viable avenue to obtain consent where the plaintiff, for reasons that I gave, would have concerns about putting themselves in a position where their own case would be prejudiced by having to go through that consent process? [3:05 p.m.] Hon. D.

Eby: The member is going to have to be more specific about what the issue is here. The way consent works is that you ask the other party: “Do you consent to this departure from the rule?” They say: “No. ” Y ou bring your application in court. It happens all the time on count- less different issues. He’ll have to be more specific about the concerns. Again, I don’t know what he’s talking about. M. Lee: In order for parties to utilize this consent pro- cess, there will need to be a level of interaction request being made, as the Attorney General sets out.

And to engage in that, at any process, particularly as the claim approaches the trial, that forces the plaintiff to have to go through revealing and indicating to the other side parts of their action and the theory of what they’re presenting to the courts. I’m only pointing out that this avenue that’s been provided in this bill is very unlikely to be utilized because it’s not that workable for plaintiffs. I’m asking the Attorney General if he sees that same concern. Hon. D. Eby: I’m trying to put together the vision of the justice system that the member has in terms of civil litig- ation.

There is not trial by ambush in British Columbia. This isn’t a criminal proceeding where the defence is keep- ing everything close, only to test on cross-examination the Crown’s witnesses. Expert reports are fact-finding reports about what happened — or, in this case, about the injuries that a per- son has. It’s alien to the idea of resolving a dispute that you’re keeping your injuries secret, that you don’t want to tell the other side what your injuries are. The goal is res- olution of the claim. How injured are you?

How can a fair settlement offer be made if nobody knows how injured you are, and you want to keep it secret? I don’t understand why that’s a negative thing — that someone who is injured, who has a claim, who is advan- cing that claim through the court system and wants it, I can only assume, resolved as quickly, inexpensively and efficiently as possible would want to keep their injuries secret. In fact, that value is recognized in the rules in terms of when expert reports need to be disclosed, as when we went through and discussed litigation privilege. Y ou have to give it 84 days in advance.

So at least the other side knows, you know, what is the nature of the injuries. There’s a very live question about whether that’s enough time. I think it needs to be significantly more time.

The issue here that I’m trying to understand that the member believes plaintiffs will have — as I understand it from him, and he’s going to have to correct me — is that his concern is that someone will have to reveal that they wish to put forward a report that shows how injured they are and that they would have to somehow disclose some aspect of that in an application to allow that report to be used — that his preference and his thought would be that that should be held, I guess, until trial. That’s not what this is. That’s not how the rules are sup- posed to work.

That’s not just speedy and expensive resol- ution at the earliest opportunity. That’s just a different sys- tem that he’s recommending. M. Lee: Well, you know, I think that we’re just having a discussion as to how these new rules are going to integ- rate with the existing rules. I certainly recognize the existing rule around the 84-day disclosure before trial. And we’ve talked about litigation privilege, which this Attorney General doesn’t seem to be as concerned about in the nature of these proceedings. But that’s certainly something that Chief Justice Hinkson had talked about in his decision as well.

If we look at the requirement under subsection (7), if I can ask the Attorney General: what are the indications of the kinds of information that are being required to be included in their application for the purpose of sub (7)? [3:10 p.m.] Hon. D. Eby: In any application, subsection (7) lists out that a party must include the following: “(

a) the name of each expert whose evidence the party intends to tender at trial; (

b) the scope of expertise of each expert whose evid- ence the party intends to tender at trial; (

c) records that support the need for additional evidence. ” M. Lee: In stating what is set out in sub (7), if we look at sub (7)(c), what kinds of records would be necessary to support the need for the additional evidence? Hon. D. Eby: Examples could include medical reports or employment records. 11592 British Columbia Debates Thursday, March 5, 2020

M. Lee: Sorry. Could the Attorney General repeat his answer? Hon. D. Eby: Examples could include medical reports or employment records. M. Lee: In terms of the need for medical reports, what kinds of medical reports would be included in this applic- ation? Hon. D. Eby: I can see that it would be very easy to conflate a couple of different types of medical reports. We’re not talking about expert reports here from a doctor.

We’re talking about, for example, a family doctor’s medical records that they would be keeping in the family practice in the course of regular administering to the patient — as an example of a medical record that I was giving as an example of records that support the need for the addition- al evidence. M. Lee: Just to understand this, the purpose for which a family doctor’s medical report would be included in the records, as necessary, to support the need for additional evidence by way of experts….

Why would that be neces- sary in the sense that, presumably, the nature of the expert report that’s being requested would demonstrate a partic- ular medical injury or a physical injury or the like? Why is there a need to have a duplication here? Hon. D. Eby:There is a need to establish the evidentiary basis for the application in order for a judge to make a finding. I’ll just remind the member that, of course, in civil litigation, you’re under an ongoing disclosure obligation — both sides are — of relevant records to the claim. M.

Lee: When the Attorney General refers to that ongo- ing disclosure obligation, why is there a need, then, to include these records as part of the application if they’re already being disclosed? Hon. D. Eby: There may be literally thousands of records that flow both ways in civil litigation. What you want to do is you want to attach the relevant records to an affidavit that supports your application so that the judge has the evidentiary basis for the application handy, and then, in chambers, you go through your argument. Y ou draw the judge’s attention to the evidence that supports the basis of your application.

It’s like any chambers applica- tion. [3:15 p.m.] I know the member is counsel as well and is familiar with that process. This is no different. M. Lee: In terms of the other types of records that would be included, the Attorney General mentioned employment records. How is that relevant to a medical expert report? Hon. D.

Eby: We’ll go down a hypothetical road here and say, well, if the person needs accommodations in order to be able to work and their records from the workplace reflect those accommodations that needed to be made, or if the person’s unable to work, or if the person was ter- minated from their job because of injuries related to the accident…. There are any number of potential hypothetic- al records and why records from work might be relevant to a personal injury matter related to a car crash. M.

Lee: With this scope of information, certainly under sub (c), we get a sense from the Attorney General as to the nature of the kind of information that will be necessary to be included in the application. If I could ask, though, in terms of sub (7)(b), when we talk about the scope of expertise for each expert, the purpose for requiring that information is what? Hon. D.

Eby: In order to apply the test in subsections (5) and (6), the court needs to understand why the person who is proposed to provide the expert report would provide relevant additional information that’s necessary to assist in the determination of the claim and satisfy 6(b), which is: “without the additional expert evidence, the party making the application would suffer prejudice dis- proportionate to the benefit of not increasing the complex- ity and cost of the proceeding. ” Without the information in sub (b), it’s very difficult to know what this additional expert’s report will bring to the court, and it makes it very difficult for the court to know whether it would satisfy the test to justify the additional expert report.

M. Lee: In terms of looking at sub (6)(b), there is a test that is required here that the party making the application would suffer prejudice disproportionate to the benefit of not increasing the complexity and costs of the proceeding. Is this a new test? Hon. D.

Eby: There are a number of influences on this section, including the federal court rules, but to my know- ledge — and I’ d say don’t quote me, butHansard, of course, is going to quote me — I think that this is not a test that is elsewhere in the rules in British Columbia, if that’s what the member is asking. [3:20 p.m.] The value and the judgment that we are asking the court to apply here is one that is very inherent to the court sys- tem and the rules in British Columbia, which is the value of proportionality.

It’s a test that the courts apply regularly throughout chambers applications in consideration of rule 1-3, I think, that we talked about in some detail before. So Thursday, March 5, 2020 British Columbia Debates 11593

the value and the type of test is certainly not unique, but the particular wording may be. M. Lee: The determination of proportionality, though, certainly is a determination that is considered under rule 1-3, as we talked about. When is that proportional- ity…? Under the current rules, when is that determina- tion made? Hon. D. Eby: So this is a value the rules say the court is supposed to apply. Every time the parties take a step or in any applications that are made, this is a value that the court is supposed to keep front of mind — the just, speedy and inexpensive, proportionate resolution of disputes.

This particular test, obviously, the court would apply in determining whether or not a party should be allowed to bring expert reports in excess of the rule. The Chair: Hon. Members, we’ll take a recess and return momentarily. The committee recessed from 3:22 p.m. to 3:33 p.m. [S. Chandra Herbert in the chair.] M. Lee: We were talking, just before the break, about proportionality. From what I understand from the Attor- ney General’s response, he referred back to the usage of proportionality in subsection (6).

I was asking for the Attorney General’s response on, under the current rules, when proportionality for costs would be taken into account. When is the appropriate juncture in any proceed- ing for that to take place? [3:35 p.m.] Hon. D. Eby: The rules contemplate that the court should have that front of mind throughout the entire pro- cess, every time the parties make a step at case manage- ment conferences and so on. That is my answer to that question. I do want to clarify. We had some discussion over the break about the member’s question related to 12.1 subsec- tion (6)(a).

The drafter was watching on television and had a better sense of the member’s question than we did here. I wanted to clarify just so that everyone is very clear. The intention of sub (6)(

a) is that the

section should be read as “addressed by expert evidence…. ” I said this in my answer, but I just want to be extremely clear about it — that the party making the application is not already addressed by expert evidence that was tendered by the party that’s mak- ing the application. Now, we’re going to clarify that in the regulations but just to be really clear. The drafter reread it and thought: “Y ou know what?

We can clarify that more in the regula- tions. ” Y ou certainly could read it the way the member read it, which is that if the other party had introduced evidence on that point, you would somehow be blocked from doing that or having the court consider that. That is not what is intended by this section. M. Lee: I appreciate that watchful eye by other staff of the ministry and the need to add clarity, of course, to this particular amendment act. That’s helpful to have that response. Just going back, though, to subsection 6(b).

In terms of determining whether the party making the application would suffer prejudice, what is the expectation of the court’s decision-making in order for a judge to formulate and meet the requirement under sub 6(b), in terms of for- mulating an evaluation as to whether the party would suf- fer prejudice disproportionate to the benefit of not increas- ing the complexity and the cost of the proceeding? What is the expectation the Attorney General would have as to the nature of the decision that that particular court would have to make? Hon. D. Eby: The test is set out completely in 12.1 sub (6).

So on the one hand, the court has to consider any prejudice that would be suffered by the party making the application if they were not allowed to tender that expert evidence, and they would have to consider how that weighs compared to the benefit of not increasing the com- plexity and cost of the proceeding. These are two separate values of our justice system, and so the court is required to weigh those two in this test. M.

Lee: In weighing the prejudice to the applicant against the benefit of not increasing complexity and cost of the proceeding, presumably the court will need to make some preliminary assessment as to the nature of the pro- ceedings in front of the court. Is there not a concern the Attorney General sees with requiring the court to make an earlier predetermination of the judge’s view as to how a potential additional expert report would meet or support the case of a par- ticular party? [3:40 p.m.] Hon. D. Eby: This goes back to our discussion earlier.

It’s not intended by our civil litigation system that the parties are going to trial blind to what the issues are or who the witnesses are going to be or this kind of thing. It’s not trial by ambush. The court already does this in a number of different ways. They determine how many days are needed for tri- al. They have witness lists. There is disclosure in order to ensure that the parties know what they’re going into trial on, because there’s a hope, in many cases, that the matter will settle. I don’t share…. I don’t know if the member has con- cerns; he’s asking the question.

I don’t have any concerns about that issue. 11594 British Columbia Debates Thursday, March 5, 2020

M. Lee: Well, if we look at some of the concerns that were addressed by Chief Justice Hinkson in his decision in Crowder, there was particular emphasis on considerations around other decisions of the court. At one point in his decision, he referred to the Mian decision, in 2014, of the Supreme Court of Canada and Mr. Justice Rothstein’s view in that decision.

Just to, for the purpose of this discussion, read it into the record: “Our adversarial system of determining disputes is a procedural system ‘involving active and unhindered parties contesting with each other to put forth a case before an independent decision- maker’ ….

An important component of this system is the principle of party presentation, under which courts ‘rely on the parties to frame the issues for a decision and assign to courts the role of neut- ral arbiter of matters the parties present. ’” If I just pause there for a moment, it clearly indicates that it’s the role of the parties to present their case and that it is put before the independent decision-maker, being the court. The court’s role is to be the neutral arbiter of the matter being presented before the court.

Again, coming back to this provision in section (6), it’s asking the court to make a determination before the parties have completed presenting both the plaintiff side and the defence side of the case. And it’s putting the court and asking the court to make a decision which is predeter- mining the outcome of what is put in front of the court, prior to conclusion of both cases being presented.

The concern that I’m raising is that section (6) is having the effect of going to a concern that was raised in the Crowder decision as to an aspect, this mechanism, as being inconsistent with what has been seen to be the ways in which legal disputes in Canada are litigated. So that is the concern. Does the Attorney General not see that con- cern with section (6)? Hon. D. Eby: No.

The quote that the member read out was in relation to the chief ’s comments related to court- appointed experts and the chief ’s reluctance to have the court participate in court-appointed experts because, in his writing of the judgment, he felt that that put the court in a position of more of a participant in the process than, as the member outlined, the neutral arbiter. This is not in relation to court-appointed experts. This test addresses the concern raised by the chief justice in the Crowder decision that the court needed discretion.

The three-expert limit in rule 11-8 was deemed unconstitu- tional, because it did not allow the court to appoint more than three experts. I believe that 12.1, by giving the court discretion and outlining what factors we would like the court to consider in exercising that discretion, responds entirely to the chief ’s concerns. [3:45 p.m.] M. Lee: Well, the paragraph that I read out into the record is still a good

summary of the adversarial system in Canada and the roles of each of the parties and the role of the court. The comment that was made by Chief Justice Hinkson that follows, I believe, is still applicable to the concerns that one could raise, that I’m raising, in respect of sub (6).

That is the concern, as the chief justice said, that “unless and until the evidence that the parties have chosen to lead has been adduced, the court has no way of determining what further evidence might be needed and no way of obtaining that advice if it is thought to be required. ” The point being that sub (6) is asking the court to deter- mine and weigh what further evidence might be required before both parties have presented their full submissions. That’s what this sub (6) is doing. The question that can be raised is….

It is again having the court formulate an improper, inappropriate predeter- mination of the result, preforming judgments on the nature of the case, what’s being presented, the theories of both sides, before each side has had the opportunity to fully present their case. That’s the concern that I can see with sub (6) — that it is having courts having to play that role in order to meet that test. Again, does the Attorney General not see the concern with respect of having to force courts to make an early pre- determination in terms of their judgment on this case, on a particular case in front of them? Hon. D.

Eby: I have total confidence in our courts to be able to do this. They do this all the time. I gave the mem- ber examples of where courts do this, other examples of whether it should be a jury trial or not, another example of whether it should be a

summary trial or not, another example of whether the defendant should get an inde- pendent medical examination or a party should get an independent medical examination. There are a number of examples where courts need to make these determinations in the lead-up to a trial. There are many examples of chambers applications where differ- ent issues are canvassed in front of the court. This will be another one. M. Lee: Well, I think this, of course, in respect to the kinds of procedural matters that the Attorney General gave in response, is a substantive measure.

It goes right to the heart of the dispute in front of the court when we’re talking about recovery of damages. So the nature of the claim and what is being sought is what the medical expert report is presumably going to go to. This is different from the types of examples that the Attorney General gave. Does the Attorney General not see that difference? Hon. D. Eby: I do see that those are different tests, yes. M.

Lee: Well, certainly, in respect of being different considerations that the nature of the decision that’s being required here by the courts is far more substantive in Thursday, March 5, 2020 British Columbia Debates 11595

nature and goes again to the judgment that a court is being asked to make. [3:50 p.m.] Again, that’s the concern as to this application and the way it is set out in subsections (5), (6) and (7) of this particular

section of the bill — that that will, again, force courts to make that earlier predetermination. I believe that that will still be a challenge in terms of this bill, one that may well be questioned as to how it is in terms of the exer- cise of that discretion. If I can ask the Attorney General, though, in terms of the nature of what is set out here providing judicial dis- cretion, how is it that the Attorney General sees it being appropriate to put parameters around the court’s exercise of discretion? This parameter is not set out in other juris- dictions, so why is it appropriate in this jurisdiction? Hon. D.

Eby: It seems the member misunderstood my answer to the last question. They’re different tests, but there are some similarities. For example, whether a defendant gets an independent medical exam of the plaintiff has very similar considerations, very similar deliberations that a court has to make. Whether or not a jury notice is struck, you have to go and show the court that the issues at play are far too complex for a jury to con- sider, which is a combination of evidence and law.

These are comprehensive presentations to the court about the issues at play in the litigation, the appropri- ateness of certain steps in litigation and how litigation should be structured, that need to be determined as pre- liminary matters. Now, the member is concerned that we’ve set out a spe- cific test for the court to consider. The discretion was really set up in a way to ensure the court has enough flexibility while ensuring that the principle of proportionality is front and centre.

We’ve really been canvassing this ground — of the importance of proportionality for public confidence in the justice system, for access to justice — for a whole bunch of reasons. The member may know, or may not know, that the expert limits in other jurisdictions apply to all civil litig- ation and, in some jurisdictions, to all criminal proceed- ings as well.

So it’s certainly reasonable for a court to have broader discretion in those broader circumstances, but in B.C. at this point, this is only limiting expert evidence on damages in motor vehicle injury cases, which is a subset of experts in a subset of litigation. It’s important to recognize that, as I said, there was a civil rules working group that identified this issue around the abuse of adversarial experts and how it was causing problems in the system. There were reforms to the civil rules that came into force in 2010. Some of those reforms were intended to reduce complexity and delay.

We’ve heard that the reform-oriented tools and processes intro- duced by those rules were not always used to their fullest extent in the litigation process. An example — we can- vassed one of them — is joint experts. We’ve chosen language that’s focused on the overarch- ing principle that animates the rules: namely, proportion- ality — just, efficient resolution of disputes.

I hope that helps the member understand why we think that it’s important to underline proportionality as the value that we want the court to consider while giving the court the flexibility asked for in Crowder to, when justice requires, allow additional expert witnesses. M. Lee: I appreciate the Attorney General’s response in terms of the other jurisdictions and the broader discretion that is appropriate, given the nature of what expert rules there are in other jurisdictions.

But here in British Col- umbia, given the focus of this bill on motor vehicle acci- dents and personal injury, in effect, there is still the same concern, though, about the way that this discretion of the courts is limited. [3:55 p.m.] Certainly, in terms of what was looked at under Crowder, in terms of rule 11-8, this is intended, as we hear from the Attorney General, to address the concerns raised in that decision by Chief Justice Hinkson. What we are presented with, though, is still a much more limited dis- cretion by the courts.

Recognizing and acknowledging the focus of this bill, it is still a narrow discretion that is being asked by the courts. I don’t see any optionality here in terms of what the courts may consider. Sub (6) says: “The following are the conditions for the purposes of subsection (5). ” Sub (5), in the lead-in, is permissive: the court may grant leave if it is satisfied that the conditions set out in sub (6) are met. In order for additional expert reports to be granted leave for by the court, this test in sub (6)(

b) must be met. Again, for the concerns I raised earlier about this being an earli- er predetermination of the result prior to the cases being fully presented, this still is a restriction and a narrowing on the discretion of the courts. That is the concern that can be seen with this par- ticular subsection 6(b). So again I would ask the Attor- ney General: in terms of the nature of this test that’s being utilized in sub (b), were there alternatives con- sidered, then, recognizing that it was the intention by the Attorney General and the ministry to put some sort of limit on the discretion?

Were there other alternatives that were considered to provide conditions that the courts must meet in order to grant leave? Hon. D. Eby: Any time you’re preparing legislation — I say this without commenting specifically on this bill and waiving any kind of privilege that might attach to delib- erations that were entered into — or considering policy related to legislation, you consider various options. The option that is chosen makes it into the bill. This test is a test 11596 British Columbia Debates Thursday, March 5, 2020

that emphasizes proportionality, and as a policy choice, that is what we are putting forward to the court. M. Lee: As a policy choice, it weighs the prejudice that an injured British Columbian would suffer by virtue of not being able to obtain an additional expert report against the benefit of not increasing the complexity and cost of the proceeding. So to whom is that benefit owed? Hon. D. Eby: All parties to the litigation. M. Lee: Well, I guess if the party is the one who is going to suffer prejudice, though, the one that is not able to meet this test….

I’m not sure, under this rule, how they would have a benefit, because, of course, they’re already being limited by the amount that they can recover under these proceedings — the number of expert reports, the cost per expert report and the disbursements. [4:00 p.m.] To the extent that the introduction of an additional expert report would add to the costs of the proceeding, aren’t they already limited in terms of what they can recov- er? Who bears the cost of that additional expert report? Certainly, the plaintiff is not able to recover that cost. Hon. D.

Eby: One of the pieces that we canvassed and one of the values that we canvassed in relation to this bill is the idea that by transitioning to more joint experts, and encouraging and incenting the retainer of joint experts, people will have a better idea before trial about the value of their claim, which will incent and encourage earlier set- tlement and faster resolution. This rule, I think, accrues to the benefit of the person, who often is the plaintiff.

I’ve seen the bills where $84,000 goes to expert reports, and they’re paying 10 percent interest on money they’re borrowing from their lawyers in a two-year litigation battle. If it settles early, it’s to everyone’s advantage, but particularly to the plaintiff, who is the injured party, in the sense that they’re accruing fewer costs with their lawyer. It’s also important to recognize that the limit applies to both parties, both the defendant and the plaintiff equally.

The benefits to both parties of having a just, effi- cient, speedy, proportional determination of the dispute is a very real one, and it’s one that we believe that this rule advances. M. Lee: In terms of the actual benefit, though, I want to come back to that. Of course, when I talk about cost to the party that’s going to introduce the additional expert report, the one for whom the application is made, the actu- al flip side of that is not increasing the costs and complex- ity of the proceeding itself.

But again, on the disbursement side, regardless of how much the proceeding actually costs in the end, that party is only able to recover 5 percent of the disbursements. These disbursements, of course, don’t just relate to the expert reports, although there will be disbursements that would relate, in the terms of travel and time by that expert, other time of the expert to participate in other proceedings related to the case, the lawsuit.

So why the need for the additional limitation on disbursements at the 5 percent level, particularly as I hear the Attorney General, again, reiterate the desire to incent the greater use of joint experts? Why is it needed, then, to have a 5 percent cap on disbursements overall? [4:05 p.m.] Hon. D. Eby: The rules of court say that the process should be proportionate to the amount that is at issue. It doesn’t say what that is equivalent to. So we are setting out a value of 5 percent as being proportionate in this proposal. M.

Lee: Well, I suppose, even at that determination by the courts on costs, there is a significant process that is gone through on disbursements. For example, when we look at rule 14-1 on costs and sub (5) on disbursements, registrars in their capacities when assessing costs “must (

a) determine which disbursements have been necessarily or properly incurred in the conduct of the proceeding, and (

b) allow a reasonable amount for those disbursements. ” Again, we’ve talked about, and the Attorney General cited again in his own responses, the importance of rule 1-3. But when you read 1-3 together with this particular rule that I cited under 14-1(5), taken together, that deter- mination is already there.

Again, why is it that it’s needed to cap disbursements when the court already has, by the existing rules of the Supreme Court’s civil rules, the requirements to apply the reasonable test and determina- tions that are necessary that would meet the proportional- ity concern that the Attorney General is indicating in his response to my questions? Hon. D. Eby: The registrar will still play an important role here. Government really just wanted to clarify what exactly a proportionate amount of disbursements is in our view.

In addition to the valuable role played by the registrar, I think there is consensus that the 2010 amendments to the rules of court did not realize the kinds of benefits that were intended around, among other things, efficiency in rela- tion to adversarial experts. Our hope is that this will assist, on the motor vehicle side as a start, in articulating a value — like a specific numerical value — around proportional- ity while recognizing that the registrar and the courts will still play an important superintending oversight. M.

Lee: One thing that I spoke about is how, when you look at disbursements and the 5 percent test…. If we’re talking about damage recovery, the actual resolved claim amount that is concluded may well be very different between one plaintiff who is employed, earning in excess Thursday, March 5, 2020 British Columbia Debates 11597

of $200,000 on an annual basis, as a professional versus someone who is elderly, a homemaker or a student whose — for a variety of reasons — income loss damage claim may be significantly less than the other individual I just described.

When you take a percentage limit on the disbursements that that plaintiff could recover, it’s quite different depend- ing on the nature of the claim and the costs. [4:10 p.m.] The concern that is there is it has a discriminatory effect depending on the nature of who the individual is and, effectively, undermines the ability of someone who has lower income, someone who has a lower settlement, from their ability to bring forward their claim, because they will be limited in terms of the amount that they can recover on the disbursements they need in order to bring forward their case.

To the Attorney General, what is his response in terms of the discriminatory nature in which that disbursement limit would be imposed on different plaintiffs, depending on their financial and income potential, as might be resolved on by the courts? Hon. D. Eby: If you have a claim that’s worth less than $5,000, you can go to the civil resolution tribunal, where there are very limited procedural rules. Y ou resolve the matter over your phone. There is considerable leeway in how evidence is introduced, and it’s intended that you resolve your dispute very quickly.

If it’s worth less than $35,000, you go to provincial small claims court. Y ou have, again, more limited pro- cedural rules, greater leeway around the introduction of evidence and an expedited process because the value of the claim is less. If you have a residential tenancy dispute, you’re not allowed to go to B.C. Supreme Court. Y ou have to go to the residential tenancy tribunal — again, an expedited pro- cess, more flexible rules of evidence.

I don’t think anyone would say that your right to live in your home is worth less or that it’s discriminatory that you go to a tribunal instead of going all the way to B.C. Supreme Court with unlim- ited expert witnesses and unlimited resources arrayed in a hearing about a tenancy. The system is set up in a way that one of the co

Document details

Collection	British Columbia — Debates (Hansard)
Citation	20200305pm-Hansard-n325
Type	hansard
Volume / chapter	20200305pm Hansard n325
Language	en
Format	pdf
Source	PROVINCIAL
Identifier	46916d89661e03b5e4a630640ef293a0d190d157

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