Some hope from BC Courts

In a recent BC decision against the Attorney General, the court struck down an attempt by the BC government to limit expert witness evidence at trial.  It was a way in which the insurance company can try to avoid having to pay for the injuries caused by allowing their drunk or negligent defendants to hide evidence of financial and medical losses that would otherwise be available. It is like a court being allowed to hear evidence in a murder trial from a maximum of 1- 3 witnesses, regardless of the complexity of the case. 

Here is the key section of that decision and the  relevance and potential applicability of  Le v. British Columbia (Attorney General) to Alberta:

To prevent this
business being done strikes at the core of the jurisdiction of the superior
courts protected by s. 96 of the Constitution Act, 1867. As a result, hearing
fees that deny people access to the courts infringe the core jurisdiction of the
superior courts.
[92] In the absence of a provision that preserves judicial discretion to relieve
against the consequences of the impugned regulation in appropriate cases,
including cases where the court exercises its related discretion to allow a party to
exceed the presumptive limit of three experts, I find that the impugned regulation, as
with the rule that was at issue in Crowder, “compromises and dilutes the role of the
court, and encroaches upon on a core area of the court’s jurisdiction to control its
process.” (Crowder at para. 185).

[93] I declare that s. 5 of the disbursements and expert evidence regulation is
inconsistent with the enabling statute, s. 12.1 of the Evidence Act, and contrary to s.
96 of the Constitution Act, 1867. It is therefore of no force or effect.

INSURANCE (ENHANCING DRIVER AFFORDABILITY AND CARE) AMENDMENT ACT, 2020

2   The following is added after section 558:

Right to call expert witnesses

558.1(1)  In this section,

                                   (a)    “joint expert” means an expert that is jointly appointed by all parties to a motor vehicle injury proceeding;

                                   (b)    “motor vehicle injury damages” means damages for bodily injury or death resulting from the use or operation of a motor vehicle as defined in the Traffic Safety Act;

                                    (c)    “motor vehicle injury proceeding” means a civil proceeding in the Court of Queen’s Bench that includes a claim for motor vehicle injury damages.

(2)  Subject to the regulations,

                                   (a)    a party to a motor vehicle injury proceeding in which value of the claim for motor vehicle injury damages is $100 000 or more shall not tender the following at trial:

                                           (i)    expert evidence of more than 3 experts on the issue of motor vehicle injury damages;

                                          (ii)    more than one report on the issue of motor vehicle injury damages from each expert referred to in subclause (i),

                                   (b)    a party to a motor vehicle injury proceeding in which value of the claim for motor vehicle injury damages is less than $100 000 shall not tender the following at trial:

                                           (i)    expert evidence of more than one expert on the issue of motor vehicle injury damages;

                                          (ii)    more than one report on the issue of motor vehicle injury damages from the expert referred to in subclause (i),

and the Court of Queen’s Bench shall not allow a party to tender expert evidence at the trial of a motor vehicle injury proceeding if doing so would result in exceeding the limits set out in this subsection.

(9)  The Lieutenant Governor in Council may make regulations respecting exceptions to the application of subsection (2).

(10)  This section applies to every motor vehicle injury proceeding commenced on or after January 1, 2021.

If Le is to hold up in Alberta, which it should, given that the Constitution applies to every Canadian and every province, it is reasonable to conclude that s. 2 of the Insurance Amendment Act and the current 2. 558.1 of the Insurance Act is in breach of s. 96 of the Constitution Act and will be of no force and effect.  As such the Government of Alberta would be well advised to exercise section 2 (9) immediately.  A complete undoing of this mess by rendering the entire Bill 41 null and void would be more appropriate, but this small step is clearly required to avoid wasting taxpayer dollars on a losing and embarrassing bill that clearly violates basic judicial rights.  

Norm Assiff

Norm Assiff

Norm was awarded the Alberta Civil Trial Lawyers Association (ACTLA) President's Award for 2012--awarded to a member of the Alberta bar who has distinguished himself or herself by his or her contribution to the profession or the community, the advancement of the law or their service to ACTLA. He has appeared at all levels of court in Alberta (Provincial Court, Queen's Bench and the Alberta Court of Appeal) as well as the Supreme Court of British Columbia and the Federal Court of Appeal.

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