Ali v. Mercedes-Benz Financial Services Canada Corporation, 2024 BCSC 384
Landmark Decision: Interpreting BC’s New Disbursement and Expert Evidence Regulation in MVA Cases
John Rice K.C. and Silvana Herra obtained an important interlocutory decision yesterday interpreting the freshly minted Disbursement and Expert Evidence Regulation (the “DEEP”). This is the Province’s most recent effort to legislatively stack the deck in favor of ICBC in litigated MVA cases after the BC Supreme Court, upheld by the Court of Appeal, struck-down the last iteration of this law.
In brief, the DEEP restricts successful injured MVA victims from recovering the value of reasonably incurred legal costs and expenses to prove their cases which exceed 6% of the value of settlement or judgment, absent ICBC consent or a court order excluding disbursements. To get such an exclusion order, the regulation imposes an onerous burden on plaintiffs, including, among other things: to obtain the court order before the costs are “incurred”; provide evidence of a reasonable risk that the disbursements will exceed the cap; and establish that the plaintiff will suffer “undue hardship” if the proposed excluded disbursements are not ordered. Here, the plaintiff applied to have certain expert opinions excluded from the cap, along with what we characterized as “contingency trial costs” in the event the case didn’t settle before trial (trial preparation and attendance costs for experts, lay witnesses, and the cost associated with preparing trial binders). In far ranging reasons, Associate Judge Bilawich granted our application, with a number of precedent setting findings including:
1. A disbursement for an expert opinion is not “incurred” until a report is completed and an invoice issued (para. 24);
2. It is “problematic” to estimate damages before the expert evidence for which exclusions are being sought is available (para. 34);
3. There was sufficient evidence in the application record on disbursements incurred to date along with a forecast of total anticipated disbursements, though a “detailed breakdown” of same is preferable (para 36).
4. Favoring the plaintiff’s proposed definition of “undue hardship” from a family law case: “in order to find undue hardship there must be a deviation from what would be considered normal or reasonable” (para. 40). Here, ICBC argued the court should apply a much more onerous test, analogous to circumstances where an ex-spouse is seeking to escape or reduce alimony or child support payments, an argument the Court did not even bother to acknowledge in the reasons.
5. Ordering that the opinions of a pain medicine physician, a psychiatrist and an OT, including initial assessments, initial reports, rebuttal reports (if needed), preparation for and attendance at trial were all excluded, along with the cost of preparing trial binders (paras. 43, 44).
6. Not exclude the cost of lay witness attendance ($20/day) or the cost associated with an economist relating to a multipliers report.
The plaintiff was also awarded costs in the cause. The full reasons for judgement can be found here.