The Supreme Court of British Columbia struck down the Attorney General’s limit of 6% of total damages on July 8, 2022, a regulation that limited the recovery of disbursements for successful parties in personal injury actions arising from motor vehicle accidents. In Le v. British Columbia (Attorney General), 2022 BCSC 1146, Justice Smith found that s. 5 of the disbursements and expert evidence regulation is inconsistent with the enabling statute, s. 12.1 of the Evidence Act, and it is contrary to s. 96 of the Constitution Act, 1867. At paragraph 90 of his ruling, Justice Smith noted that s. 5 prevents or discourages some plaintiffs from accessing the court for a decision on its merits. He stated:
Some plaintiffs will be unable to marshal all of the evidence necessary to prove all aspects of their case without sacrificing other reasonable expenses or necessary portions of their compensatory damages. Others may have the evidence in the form of the necessary expert reports, but will be unable to proceed to trial because of the additional costs and risks associated with having those experts testify.
Further, Justice Smith found that as in Crowder v. British Columbia (Attorney General), 2019 BCSC 1824, the impugned regulation “compromises and dilutes the role of the court, and encroaches upon a core area of the court’s jurisdiction to control its process.” Justice Smith determined that s. 5 is of no force or effect.
In CBABC’s May 29, 2020 Submissions to the BC Government, respecting the Attorney General Statutes (Vehicle Insurance) Amendment Act, 2020 (Bill 11) and the Evidence Amendment Act, 2020 (Bill 9), CBABC opposed the Attorney General’s proposed 5% cap (which was ultimately legislated as a 6% cap) on what a successful litigant can recover for disbursements incurred to prosecute or defend their case.
In its Submission, CBABC warned that the proposed limits on recovery of expert fees and overall disbursements disproportionately limits access to justice for our most marginalized members of society. CBABC called for the arbitrary cap on all disbursements to be discarded in its entirety and called into question the constitutionality of the government’s proposed amendments.
CBABC commends the Court’s ruling as a positive step in improving access to justice.