B.C.'s top judge has thrown out the provincial auto insurer’s cap on the number of experts paid for in insurance trials, ruling that such limits are unconstitutional because they encroach on the court’s ability to control its process.
Christopher Hinkson, Chief Justice of the Supreme Court of British Columbia, ruled against the medical specialist restriction, which B.C. Attorney-General David Eby imposed this year after a Globe and Mail investigation into the lucrative, little-known growth industry that generates “independent medical evaluations.”
Justice Hinkson noted that such caps in car accident cases are common in other provinces, but most of these jurisdictions put in limits by amending their respective Evidence Acts, not through a cabinet order – as British Columbia did.
Mr. Eby, speaking to reporters in Victoria Thursday, hours after the ruling was released, said the expert cap was partly responsible for roughly $400-million in savings the Insurance Corp. of British Columbia had budgeted for in this fiscal year.
“In our initial financial reports on ICBC, we were showing that that corporation was on track to break even or come close to breaking even after two years of losing a billion dollars [annually]," Mr. Eby said.
When the NDP formed government and he took over the portfolio two years ago, Mr. Eby called the financial situation at the public insurer a “dumpster fire.” Now, he says his ministry is reviewing the new ruling and deciding whether to bring in legislation or appeal the “very disappointing” decision, which he said may have “erected a constitutional fence around this broken system.”
The Trial Lawyers Association of BC, which acted as a petitioner in the case, says it was concerned the proposed changes would compromise a litigant’s access to a fair trial.
“Those who have suffered the most severe injuries were at most risk of unfair process,” it said in a statement after the judgment was released on Thursday. “This is because the more severe the injuries, the more experts than are generally required to understand and explain the extent of damages caused and the associated consequences.”
The Opposition Liberals said in a statement that the court loss will only exacerbate the high cost of auto insurance in the province, with premiums expected to go up a quarter in price over the next three years.
Mr. Eby said in February that accident injury claims have increased 43 per cent in the past five years and the use of experts has contributed to a 20-per-cent rise in the corporation’s injury settlements in the past year. The latest fiscal year ended March 31, and ICBC announced in February that its projected deficit was $1.18-billion, on top of the $1.3-billion loss posted over the 2017-18 fiscal year.
In announcing the cap, Mr. Eby said The Globe showed in 2017 that ICBC’s tactics of recruiting experts to unfairly discredit injury claims was “an embarrassment for the corporation, and an illustration of why we are trying to move to reform this adversarial expert system.”
The investigation found that in Ontario and British Columbia alone, hundreds of Canadian doctors take in roughly $240-million a year collectively, putting their names to accident injury assessments for the auto-insurance industry. Insurers primarily use those reports as leverage to limit or cut what they pay for treatment and other benefits.
The Globe investigation prompted both British Columbia and Ontario to review how auto-accident victims are assessed. Ontario also launched a broader review to look for greater efficiencies as the province grapples with high auto insurance rates.
With a report from The Canadian Press
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Mike Hager