Fifth Session, 41st Parliament

(2020) OFFICIAL REPORT

OF DEBATES

(HANSARD)

Thursday, March 5, 2020

Afternoon Sitting

Issue No. 325

ISSN 1499-2175

The HTML transcript is provided for informational purposes only.

The PDF transcript remains the official digital version.

CONTENTS

Orders of the Day

Committee of the Whole House

Bill 9 — Evidence Amendment Act, 2020

M. Lee

Hon. D. Eby

Royal Assent to Bills

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

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.

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 Attorney

General serving at the same time as minister responsible 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 member 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

responsible, 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, Attorneys General,

including in the previous Liberal administration, have…. In fact,

Suzanne Anton, when she was Attorney General, established an Attorneys

General committee exclusively for the purpose of making court rules with

only 90 days’ notice to the chief justice. So the suggestion 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 fundamentally 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 about the rules committee or the jurisdiction of an Attorney

General to be able to work for the rules committee or not work with the

rules committee to bring forward changes to the rules of court by way of

the Evidence Amendment Act in this Bill 9.

Under the Attorney General Act — and I’m quite familiar 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 Executive 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, saving 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 — absolutely — 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 pretending 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 intemperate, 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 appreciate

that, and that’s what we’re here to do. But fundamentally, 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 Vancouver–Point Grey is in. It is endemic in terms of his

comments 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 foremost, to this province as the chief

legal officer responsible to protect the rights of injured British

Columbians in British 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 forward rule 11-8, brought it forward without

any consultation 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 recovery of damages in motor vehicle accidents but now expanded to

all personal injury actions — another point we’ll get to later on in

this bill.

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 Attorney 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 prescribed rules around

expert reports, there is no other jurisdiction in this country that

attempts to limit the jurisdiction and the discretion of the courts in

the manner in which rule 11-8 and Bill 9 are doing. It is completely

different.

The Attorney General can stand there and talk about other

jurisdictions, but the fact of the matter is, in this jurisdiction, 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

jurisdiction and the discretion of the courts.

That is still the case in this bill. It’s still the same concern.

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 listening, 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 concentrate 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 guidance, 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 specific 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 constitutional 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 discretion…. Has there been

an assessment made by the lawyers in the Attorney General, advising the

member for Vancouver–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 legislation in this place that I believe is

unconstitutional, the answer is no.

The member is welcome to ask that on any bill I introduce 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 reason 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 comments to date, there are

considerations regarding the concerns 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 member 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 member believes is unconstitutional. Let’s have that discussion.

Very hard for me to respond about concerns about concerning

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: Yes.

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 Evidence 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 Attorney

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 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 witnesses, 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 Commonwealth

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 intentional 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 particular 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-legal 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 member 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 question? Is he asking what

reports other than doctors’? I didn’t quite follow his

question.

M. Lee: Yes. 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 causation 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 talking 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 further

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: Yes, 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 indemnification. Disbursements are always limited to

those that are necessarily or properly incurred in the course of

litigation 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 to encourage more proportionate

spending so parties will be fully indemnified or close to it in terms of

their compensation.

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 October 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

disbursements 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, certainly, under our existing rules.

The point that I was trying to get at, too, with the Attorney

General was really about the unlevel playing field concern 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 disbursements 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 General 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 diligence 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 limited 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

person 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, better 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 unambiguous agenda here, which

is to discourage this adversarial 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 consideration 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 Attorney

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 question as

to: what is the estimated number of lawsuits that will be affected by

this bill?

[2:20 p.m.]

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 implementation 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 litigation 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 proceedings under the current rules and

have relied upon that system and now are having the rules change, which

will affect their ability to bring forward their full claim for full

recovery 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 history 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 different 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 different 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 intended 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 collision, 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 system 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

adversarial experts, you can. You can use up to three. You 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 February 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 February 6.”

I want to give the member an example of a race to the courthouse.

When the minor injury cap on non-pecuniary losses was introduced, there

was a rush to file cases before the new limits applied. In one instance,

a single lawyer 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 retroactivity 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 Columbia.” 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 better 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 discussion,

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 conduct 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 anyone. We

telegraphed this in several different ways. Despite all of that

telegraphing of our intention to do this, the date is still February

[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 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 General 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 practicable, conducting the proceeding in ways that are

proportionate to (

a) the amount involved in the proceeding, (

b) the

importance of the issues in dispute, and (

c) the complexity 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 complexity 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 certainly cost concerns, and

the Attorney General speaks to the need for providing an incentive.

Well, that is a different 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 disbursements. That is certainly a stick

methodology; it’s certainly not a carrot. It is forcing plaintiffs to do

something 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: “Yeah, 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.

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 public 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 jurisdictions

across Canada and other Commonwealth jurisdictions 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 considerations around how they actually function under

our current system. I understand that there is encouragement — incentive

— to utilize joint expert reports, but as the Attorney 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 forcing 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 litigation 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 evidence…is not already addressed by

expert evidence permitted under subsection (2) or (4).” If there is a

joint expert under subsection (3) that covers a particular subject

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 responsive.

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 matter 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 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 proceeding 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

additional report on the same subject matter as per the language of sub

6(a), does that preclude the court from granting 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 proceeding 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 regulations.” 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 current 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 consent. In terms of the proposed change

here, consent typically 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. Typically it’s done

in writing, and if the court asks, you just stand up in court and say:

“Yeah, 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 prejudicing 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

additional expert evidence and then would order that it be allowed or

not.

M. Lee: I’m just trying to break down the various avenues for which

plaintiffs can seek to recover their full damages 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.” You

bring your application in court. It happens all the time on countless

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 process, 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 litigation. There is not trial by

ambush in British Columbia. This isn’t a criminal proceeding where the

defence is keeping 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 person 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 resolution 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 advancing 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.

You 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 supposed to

work. That’s not just speedy and expensive resolution at the earliest

opportunity. That’s just a different system 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 integrate 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 evidence 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.

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 application?

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 additional 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 necessary in the sense that, presumably, the nature of the

expert report that’s being requested would demonstrate a particular

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 ongoing 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. You draw the judge’s attention

to the evidence that supports the basis of your application. It’s like

any chambers application.

[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

terminated from their job because of injuries related to the accident….

There are any number of potential hypothetical 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 disproportionate to the benefit of

not increasing the complexity 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 knowledge — and I’d say don’t quote me,

but Hansard , 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 system 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 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 proportionality…? Under the current rules, when is that

determination 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 Attorney 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 proceeding 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 process, every time the parties make a step

at case management 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 subsection (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 making the application.

Now, we’re going to clarify that in the regulations but just to be

really clear. The drafter reread it and thought: “You know what? We can

clarify that more in the regulations.” You 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 formulating an evaluation as to whether the party would

suffer prejudice disproportionate to the benefit of not increasing 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 complexity 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 proceedings 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 particular 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 trial. 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 concerns; he’s

asking the question. I don’t have any concerns about that

issue.

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 neutral 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

predetermining 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 concern 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 unconstitutional, 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 determine 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 predetermination 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 predetermination 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 member 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 independent 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 different 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 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 exercise of that discretion.

If I can ask the Attorney General, though, in terms of the nature

of what is set out here providing judicial discretion, 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 jurisdictions, 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

consider, which is a combination of evidence and law.

These are comprehensive presentations to the court about the

issues at play in the litigation, the appropriateness of certain steps

in litigation and how litigation should be structured, that need to be

determined as preliminary matters.

Now, the member is concerned that we’ve set out a specific 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 litigation and, in some

jurisdictions, to all criminal proceedings 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 introduced by those rules

were not always used to their fullest extent in the litigation process.

An example — we canvassed one of them — is joint experts.

We’ve chosen language that’s focused on the overarching principle

that animates the rules: namely, proportionality — 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 Columbia, given the focus of this bill on motor vehicle

accidents 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

discretion 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 earlier

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 particular

subsection 6(b). So again I would ask the Attorney General: in terms of

the nature of this test that’s being utilized in sub (b), were there

alternatives considered, 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 deliberations 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

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 recover? 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 settlement 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, efficient, 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 actual flip side of that is not increasing the costs and

complexity 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 determination 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 determinations that are necessary that

would meet the proportionality 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 relation 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 proportionality 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

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 depending 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. You 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. You have, again, more limited procedural 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. You have to go to the residential tenancy

tribunal — again, an expedited process, 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 unlimited expert

witnesses and unlimited resources arrayed in a hearing about a

tenancy.

The system is set up in a way that one of the considerations

around procedure is the value of the claim that’s at issue. So if you

have a $10 million business dispute, it might be a different procedure

than if you have a small business. If you have a non-profit organization

that serves, disproportionately, people of a certain marginalized group,

you’ll have less money at issue and you’ll have different procedural

rights in your dispute.

I take the member’s point in that the amount at dispute is part of

the formula in determining the recoverable disbursements. I would also

underline that counsel need to take into account the value of the claim

that they’re advancing and the person that they’re advocating for when

they’re spending money to resolve that claim — to consider those things

and to ensure that they’re proportional. Proportionality is a key value

of our justice system.

M. Lee: Well, I think it’s important to be able to consider the impact of

these restrictions on court proceedings and the differences in result of

that impact depending on the circumstances — financial, economic

potential, or otherwise. I think that if we come back to the

disbursement limit itself, the Attorney General, in his previous answer,

acknowledged the role of the registrar and the judgment of the

registrar.

Is there an assessment that’s been done by the ministry that the

registrars of this province are improperly conducting their duties and

meeting the requirements under Supreme Court civil rules and that their

decisions to allow disbursements are somehow coming to the wrong result?

Is that what I’m hearing from this Attorney General?

[4:15 p.m.]

Hon. D. Eby: I certainly have no criticism of registrars or courts, but I do

see room for improvement in proportionality. It is probably a function

of the existing rules and the existing laws that fail to incent the use

of joint experts that counsel have not taken those up. How would I blame

the registrar for counsel failing to take up the use of joint experts or

counsel failing to proportionately litigate? It’s not the registrar’s

fault. Frankly, I’m not even sure it’s counsel’s fault. They work within

the rules that are out there.

What we’re trying to do is set out some different rules. We’re

following in the footsteps of many jurisdictions that have limited

expert reports in various ways, some in a far more restrictive way — the

United Kingdom and Australia — and some in a less restrictive way —

other provinces in Canada.

We have a British Columbia proposal, here in this bill, of how to

address this issue of adversarial expert reports, one that has been

widely identified as a problem by many, many observers of our court

system, and, in the absence of reform, seems like it will continue to be

an issue. So this is an attempt at reform that we hope will bring

proportionality, starting with motor vehicle collision

litigation.

M. Lee: The continued conversation through this committee stage is around

proportionality. I believe that I have made it clear, in terms of the

understanding around the current rules that are set out to address

proportionality, both under 1-3 and 14-1, as I’ve described…. The

Attorney General is conveying a view that, given the nature of claims

and how disbursements, presumably, and costs are being incurred in our

court systems, there needs to be further rules established.

We’ve talked, certainly, here about the limit on expert reports.

We haven’t yet addressed what is to be set in regulation in terms of the

actual cost per expert report. But as we talk about, again, this third

further limitation around disbursements…. In view of the Attorney

General’s response, I’d just like to ask the Attorney General, in terms

of the actual limitation on disbursements, what other jurisdictions are

utilizing this limitation.

Hon. D. Eby: Can the member advise to which limitation he’s

referring?

M. Lee: The limitation that would be, effectively, under sub (9)(a)(B),

which is that “…the amount of disbursements payable as a percentage of

the total amount recovered in an action…” be set out by

regulation.

We understand, by virtue of the Attorney’s announcement on

February 6, that that would be set at a 5 percent level. The Attorney

General has commented on that, or utilized that percentage here, so

that’s the limitation. I’m asking if the Attorney General can indicate

to this House what other jurisdictions currently employ a similar

restriction or limitation on disbursements.

Hon. D. Eby: Staff are not aware of a jurisdiction that uses a percentage of

the claim as a disbursement limit. However, there are very different

approaches in the U.K. and Australia, which I would say are

significantly more restrictive, in terms of this type of

disbursement.

[4:20 p.m.]

In the U.K., the maximum disbursement for a general practitioner

report is £180, which is about $307 Canadian. The maximum for

specialists, like an orthopedic surgeon, is £420, $716

Canadian.

For New South Wales in Australia, they start at $250 Australian

for a general practitioner, which is about $225 Canadian, and increase

to a maximum of $1,600 Australian for a specialist who has never seen

the patient before. That’s roughly $1,440 Canadian as the maximum

disbursement claimable. They also have limits on the number of experts

that you’re allowed. For example, in Australia, you’re only allowed a

single joint expert report.

M. Lee: Thank you for indicating other jurisdictions. I didn’t hear any

Canadian jurisdictions, so I take it that British Columbia would be the

first jurisdiction in Canada to have this percentage limitation on

disbursements. I’d ask the Attorney General to confirm that.

Secondly, that when we’re talking about the other examples of

other limitations in the U.K. and Australia, the examples that the

Attorney General has stated are examples where the cost, presumably, of

recovery of a particular expert report is limited to lower figures. I

take the Attorney General’s comment on that compared to the proposed

limit or the limit that we expect by way of regulation under this bill

at the $3,000 level.

Again, we will get to that discussion around that particular cost

item and some limitation on the number of expert reports.

Those types of limitations are consistent with the two other types

of limitations under this bill, but again, I did not hear in the

Attorney General’s response that there is any other jurisdiction even

outside Canada that would have the type of percentage of disbursement

limitation that is being proposed under this bill. Is that also

correct?

Hon. D. Eby: I thought I did say it in my original answer. I’m happy to say it

again. To the best of my knowledge, we — and staff — are not aware of

another jurisdiction that takes this approach yet. I think if it is

upheld, there will be other jurisdictions certainly looking at it. We

have every reason to believe it will be.

I’ll note…. It’s not a perfect comparison. Some caution has been

urged on me because the U.S. is so different in many ways from Canadian

litigation, including the size of awards. The default model in the

United States for litigation is that each party must bear their own

costs, period, in advancing litigation. None of the expert report costs

are available. So that would be a zero percent limit.

When you look at the amounts in Australia, where you’re only

allowed a single joint expert without leave of the court and you’re

limited to hundreds of dollars, not thousands of dollars, in terms of

the cost of those reports in…. In the U.K., I believe it’s no expert

evidence without leave of the court. We’ve got three. In the United

States, zero dollars in terms of supporting you in advancing your own

litigation. All common-law jurisdictions.

Then our approach. We fall somewhere between other Canadian

jurisdictions and the U.K. and Australia. Again, I’m reluctant to adopt

the U.S. as a comparator, but it is instructive that those policy

decisions can be made.

[4:25 p.m.]

I hope that eases the member’s mind in the sense that he seems to

have a belief that this is a profoundly draconian and unprecedented

incursion into litigation, when in fact, there are many precedents for

limiting experts and for limiting disbursement costs. This is one

example of it and not particularly restrictive compared with other

common-law jurisdictions.

M. Lee: I think as we go forward here, certainly in Canada, there is no

disbursement percentage limit anywhere else in this country. B.C. will

be the first one to add a further limitation on top of the limitation on

expert reports and the dollar figure per expert report.

We’ve talked about that first limitation as being subject to

judicial discretion, which is far more narrow than in any other

jurisdiction in Canada. And now, when you couple that with this

disbursement limitation, I would think that what we are being presented

with is very much a more restrictive legislative framework around expert

reports and costs.

When I look at the disbursement restriction, can I ask the

Attorney General: where did this particular limitation, the proposal for

this limitation, originate?

Hon. D. Eby: The 5 percent limit is consistent with the reimbursement that’s

currently estimated to be made by ICBC in about 70 percent of cases. The

reimbursement rate may be closer to 6 percent per file, but this figure

includes approximately $800 in court filing fees, on average. Fees

payable to the Crown are exempt. So the cap is set to 5

percent.

Now, I note that in the civil resolution tribunal, it’s a $5,000

maximum disbursement recovery. Their jurisdiction is $50,000. That was a

limit that was set by the previous administration.

M. Lee: Thank you for that response in terms of the figures that ICBC is

working with. Is there any concern, though, in terms of the…? What does

the balance of that look like in terms of the other 30 percent of cases?

What, typically, is the disbursement range on those costs?

[4:30 p.m.]

Hon. D. Eby: We don’t have those numbers.

M. Lee: Well, I think that in the context of reviewing this bill and

understanding what is, as the Attorney General confirmed, a novel,

groundbreaking limitation that this country has not seen, it’s important

that we understand how this limitation is coming back on disbursements,

particularly with the understanding that it’s being looked at as being

set at 5 percent.

Is the Attorney General’s expectation that that disbursement limit

would be set at 5 percent?

[S. Gibson in the chair.]

Hon. D. Eby: That is what is in the bill.

M. Lee: The actual 5 percent figure is stated where in the

bill?

Hon. D. Eby: The member is right, and a brief moment of inattention on my part.

It is and will be in the regulations. It’s not in the bill.

M. Lee: That’s the reason why I asked the question, because it’s a pretty

material factor here for us to understand the nature of, again, what we

have discussed, being a further narrowing of costs for parties,

particularly the plaintiffs’ side. I think it’s important that the

Attorney General can confirm to this House that by way of regulation,

that limit that’s expressed in sub (9)(a)(

B) will be 5

percent.

Hon. D. Eby: Yes.

M. Lee: In receiving that confirmation, then, can I ask again…? In the

absence of understanding the full experience, financially, of ICBC,

which, in response to my previous questions, the Attorney General has

referred to, were there any other considerations around costs that were

utilized to establish that 5 percent figure?

Hon. D. Eby: Not that I’m aware of, but I guess the member would need to

clarify a little bit more what he means by costs in terms of our

considerations.

M. Lee: As I understand it, the Attorney General has indicated that the 5

percent figure or a limitation on disbursements is related to ensuring

proportionality of disbursement costs that ought to be recoverable by

parties in the nature of these proceedings and that it’s necessary to

give courts and registrars further rules, parameters, under which

they’re able to award those costs.

[4:35 p.m.]

To be specific, I am mindful of the test that the courts are

having to meet — and parties — in sub 6(b), which refers to the cost of

the proceeding, versus the limitation that’s set out in sub 9(a)(

B) as

disbursements. As we talk about disbursements, again, the Attorney

General has indicated that there are reference points around 70 percent

of decisions, court cases.

In motor vehicle accidents, it’s been ICBC’s experience that

disbursements are usually at the 5 percent level of 70 percent of those

cases. He does not have with him access to the figures for the balance

of those court cases. I’m interested to still understand that, what that

figure would be. Because for anyone to assess here in this House whether

this is going to be a reasonable limit….

First, I question whether there should be a limit in the first

place on disbursements. I think that’s clear from the discussion we’ve

had to date. Secondly, even if there is to be a limit, as is proposed

under this bill, why is 5 percent the appropriate limit? I am querying

to the Attorney General: what other data sets, reference points, were

utilized in assessing the 5 percent limit, setting it at that particular

numerical percentage of 5?

Hon. D. Eby: As a transitional matter, for trials after October 1, where the

party properly incurred disbursements in excess of 5 percent before

February 6, you can apply to be exempted from the 5 percent. The second

thing is that there are a number of pieces excluded from the 5 percent —

fees payable to the Crown and sheriff, filing fees, court fees, jury

fees, disbursements where costs are assessed as special costs,

disbursements for expert reports on liability where the court orders

that they be excluded from the 5 percent cap.

Now, the member…. I understand his question — that he wants very

specific data about the number of claims and the value of disbursements.

ICBC does not have that data. But they do have…. I can advise the member

and this House that 70 percent of claims are going to be falling within

that 5 percent. Now, for those remaining 30 percent, there are a number

of potential explanations of why they’re outliers.

One is that ICBC acted very badly and that they litigated in a way

that drove costs up. In that case, if this happens in the

post-implementation environment of this bill, special costs are

available to the court to sanction that conduct and to increase the

amounts recoverable to the party that’s been aggrieved by ICBC’s bad

conduct.

The other possibility is that the plaintiff acted very badly, that

the plaintiff’s counsel went out and incurred a whole pile of expenses

well in excess of 5 percent, without any regard for proportionality or

appropriateness of incurring those expenses, and that’s why they’re well

outside that range. In that case, there’s no special costs award

available to you, because it’s your own conduct that resulted in

that.

Now, I don’t know if that’s adequate assurance to the member or

not that there are still safeguards in place if ICBC acts very poorly.

Now there is incentive for both plaintiff counsel and ICBC to use joint

experts and to limit the number of expert reports.

I hear from the member that he disagrees with the premise of this,

that he believes there should be unlimited disbursements regardless of

the value of a claim. On that, we’re just going to have to agree to

disagree. We won’t resolve it in this committee stage, because that is a

fundamentally different perspective on how courts should

operate.

[4:40 p.m.]

M. Lee: Well, of course, you know, we talked about this at second reading.

I took some time to outline how disbursements and how the rules of court

work. It’s not unlimited. It’s not unlimited now. Again, I took some

time and attention to refer the Attorney General to rule 1-3 and rule

14-1 of the Supreme Court civil rules. The Attorney General confirmed

here that he takes no issue on how registrars are interpreting and

utilizing those rules.

Under the current rules of court, it’s not unlimited. So when the

Attorney General gives an explanation that of the 30 percent of cases

that are outliers, to use his words…. Aren’t those outliers dealt with

by the existing rules of court?

Hon. D. Eby: I thought that I was clear before. Maybe not. The issue of

adversarial experts — the cost of them, the system that has grown up and

the cost and complexity that they bring to the system without adding any

clarity to the court — has been recognized as an issue for many, many

years in British Columbia’s courts. It is not the fault of the

registrars, the courts or even the lawyers. It is the nature of how the

rules have come together to operate, which is in a way that many people

think needs reform.

Now, we can have disagreements about what kind of reform there

should be. But I don’t even hear the member saying that he thinks that

there’s an issue here. I think that there’s an issue here with

adversarial experts. I think that there needs to be reform.

This is the proposal the government has put forward around that

reform. If the member disagrees with this model, that’s fine. But I

disagree with the member’s core assumption that the current system is

working just fine, as do many people. I can do that without assigning

blame to anyone, because that is simply the set of rules that people are

operating under right now, and it’s not working the way that it

should.

This is our proposal for reform. The member can vote for it, or

vote against it and put forward his own proposals. Or if he thinks that

things are working fine, then he can advocate that personal perspective.

I just don’t agree with it.

M. Lee: I think members on this side of the House are very clear about our

opposition to this bill. Part of the reason that that is the case, as I

expressed in our second reading speech — my colleague from

Richmond-Queensborough the same — is the lack of fairness in this bill

and the concern around the rights of British Columbians and their way to

access the courts.

This disbursement limitation, as we’ve talked about earlier, has a

discriminatory effect, depending on which individual we’re referring to.

So I continue to question the assertions and the premises that the

Attorney General gives for portions of this bill. That’s what we’re

doing here at committee stage.

Access to justice is very important for British Columbians. We

want to continue to ensure that is the case. Certainly, for the

outliers, for abuses, we need to ensure that there is not an inordinate

amount of cost that is exhibited and incurred in our court proceedings.

But as I have said, our existing rules already deal with that. It’s not

unlimited.

The other purpose of my question, though, to the Attorney General,

which he did reconfirm, is that…. I’m not hearing in the analysis of

this limitation on disbursements that there were any other data sets

utilized, other than what ICBC has provided for the purpose of this

bill. Can I ask, just as that is done: how does that analysis work

between the ministerial responsibility that the Attorney General has for

ICBC with the Attorney General Ministry? How does that combine in terms

of the efforts when it comes to analysis of this disbursement

limitation?

[4:45 p.m.]

Hon. D. Eby: The member will know that ICBC is a Crown corp. directed by a

board. They have no ability to advance legislation, nor should they.

This bill…. The policy work, the analysis, was done within the Ministry

of Attorney General, and it is a Ministry of Attorney General bill

tabled by me in this Legislature.

I think the member knows all of those things, but sometimes it’s

good to go over them.

M. Lee: I think it goes back to the discussions we’ve been having on this

bill in terms of the joint responsibility that this Attorney General

has. But without replaying that discussion that we had already at the

beginning of this committee stage, what the Attorney General just

confirmed is that the policy analysis and the sponsorship, certainly,

and review of this bill is through the Ministry of Attorney

General.

What I’ve heard in terms of discussion around limitations and

amounts…. The data sets which the Attorney General’s ministry is looking

at for the purpose of establishing further limitations…. What I heard

from the Attorney General is that the data sets are coming from ICBC.

The experience of ICBC in terms of the 70 percent of claims settling or

incurring disbursements at the 5 percent level was a figure the Attorney

General indicated that ICBC had provided or analyzed. Again to the

Attorney General: what level of involvement has ICBC had in this

bill?

Hon. D. Eby: I hear the member talking about data sets as if there are a large

number of data sets out there that were either ignored or preferentially

chosen by government. I welcome his suggestions about data

sets.

Unfortunately, in our court system, we don’t do a great job of

collecting data. That’s part of why we signed the triple aim agreement

with the B.C. Supreme Court chief justice and the Chief Justice of the

Court of Appeal to work together to improve the experience of people in

the justice system. A key part of that is data collection, understanding

better how people move through the justice system, where we can address

pinch points and so on. A recognition by all involved is that there’s an

opportunity to collect more information and to make better decisions

about how the court system operates.

It’s early days. There are not great data sets out there, in the

level of detail that I’m hearing the member ask for in his questions.

They just don’t exist.

Why did we gather data from ICBC in doing the policy analysis?

It’s because ICBC is involved in fully one-third of litigated cases in

the B.C. Supreme Court, and it gives us a perspective about how some of

this might play out. This is really helpful when you’re designing policy

and law to understand what the impact might be on people, which is a

lens that we put on all of our legislation when we bring it forward. How

will this affect people in British Columbia? We get the best data we

can.

Now, if the member has suggestions about other data sets of which

he’s aware — I’m glad to hear them — that might shed light on some of

these issues, we would do our best to gather them up. But in terms of

the data we did have, we think that it’s reliable, and it informed the

policy decisions that were made by the Ministry of Attorney General

staff in advising me, and my colleagues and I as the government, putting

forward this proposal to this House.

[4:50 p.m.]

M. Lee: Turning, then, to the limitation on the expense per expert report,

at the $3,000 level. First, let me just confirm to the Attorney General.

Again, $3,000 per expert report has been stated in the February 6

announcement by the Attorney General about this bill. Is that what will

be set by regulation, pursuant to this bill, if it passes?

Hon. D. Eby: Only for damages.

M. Lee: You say only for damages. When we look at the regulation-making

power under this bill, under (9)(a)(i)(A), it is on the amount of

disbursements payable for an expert report. So when the Attorney General

makes a distinction for damages, is there a different type of expert

report that might be caught within this framing?

Hon. D. Eby: It’s the same as we canvassed earlier. Liability expert reports is

the best example.

M. Lee: I understand that in the guidelines for the B.C. Medical

Association, there is guidance given as to the amount to be charged for

a medical report in the $1,800 level. Was there any consideration of

that? Why was the $3,000 level selected?

Hon. D. Eby: The member is correct. Doctors of B.C. provides non-binding

guidelines to their members suggesting a price of $1,832 for a

medico-legal opinion of average complexity, which is well below the

$3,000 limit. According to the ICBC data, about half of the expert

reports currently reimbursed by ICBC cost $3,000 or less.

M. Lee: In terms of the other half of medical expert reports from the ICBC

data, what is the range of expenditures or costs for those medical

reports?

Hon. D. Eby: Expert reports reimbursed by ICBC can range anywhere from $1,000

to $10,000, depending on the com