Le v British Columbia

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Le v. British Columbia (Attorney General),

2022 BCSC 1146

Date: 20220708

Docket: S217361

Registry: Vancouver

In the Matter of the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241

Between:

Thi Sau Le, by her litigation guardian Angela Nguyen, Bong Won Kim and Trial

Lawyers Association of British Columbia

Petitioners

And

Attorney General of British Columbia

Respondent

Before: The Honourable Mr. Justice N. Smith

Reasons for Judgment

Counsel for the Petitioners:

R.D.W. Dalziel, Q.C.

A. Calvert

Counsel for the Respondent, Attorney

General of British Columbia:

G. Morley

M.A. Witten

Counsel for the Attendees, Van Sang Cong,

Archibald Pastrana Sadiwa, Tao Tao,

Toyota Credit Canada Inc., Manjeet Singh

Saran, and Yellow Cab Company Ltd.:

A.M. Gunn, Q.C.

R.W. Parsons

Place and Dates of Hearing:

Vancouver, B.C.

March 31 and April 1, 2022

June 24, 2022

Place and Date of Judgment:

Vancouver, B.C.

July 8, 2022

Le v. British Columbia (Attorney General)

Page 2

Table of Contents

Paragraph

Range

INTRODUCTION

[1] - [4]

THE PARTIES

[5] - [8]

THE IMPUGNED REGULATION

EFFECTS OF THE REGULATION

[9] - [11]

[12] - [34]

[35] - [40]

CROWDER V. BRITISH COLUMBIA (ATTORNEY

GENERAL)

TRIAL LAWYERS ASSOCIATION OF BRITISH

COLUMBIA V. BRITISH COLUMBIA (ATTORNEY

GENERAL)

[41] - [47]

ADMINISTRATIVE LAW ANALYSIS

CONSTITUTIONAL ANALYSIS

CONCLUSION

[48] - [72]

[73] - [92]

[93] - [94]

Le v. British Columbia (Attorney General)

Page 3

INTRODUCTION

[1]

The petitioners ask the court to declare invalid a regulation that limits the

recovery of disbursements by the successful parties in personal injury actions arising

from motor vehicle accidents. The challenge is brought on both administrative law

and constitutional grounds.

[2]

The Lieutenant Governor in Council (“LGC”)—that is, the provincial cabinet—

enacted the Disbursement and Expert Evidence Regulation, B.C. Reg. 210/2020

(the ‘impugned regulation”) as a regulation under the Evidence Act, R.S.B.C. 1996,

c. 124 [EA] by Order in Council No. 468/2020, later amended by B.C. Reg. 31/2021

pursuant to Order in Council No. 75/2021. It caps the disbursements that a

successful plaintiff may recover to an amount equal to 6% of either the total damages

awarded by the court or of the amount agreed to in a settlement, subject to some

specific exceptions. Where a defendant is successful and a plaintiff receives no

damages, the recovery of disbursements by the defendant is a matter for the court’s

discretion.

[3]

It is common ground that the regulation will likely have the most impact on

cases decided at trial or settled shortly before trial and that, in those cases, the most

significant disbursements are usually fees charged by medical and other expert

witnesses for their opinion reports and testimony.

[4]

There is also no dispute that the regulation and the EA amendment

authorizing it were a legislative response to the decision of the Chief Justice of this

Court in Crowder v. British Columbia (Attorney General), 2019 BCSC 1824

[Crowder]. That decision struck down an earlier provision, enacted as part of the

Supreme Court Civil Rules, that limited each party in a motor vehicle personal injury

action to three expert witnesses on damages.

THE PARTIES

[5]

The petitioner Thi Sau Le is a 77-year-old retiree who alleges in a separate

proceeding that she was struck by three vehicles while attempting to cross Victoria

Le v. British Columbia (Attorney General)

Page 4

Drive in Vancouver on January 3, 2020. Her counsel in that action believes that, due

to the nature of her injuries and her personal circumstances, the cost of assembling

the expert evidence necessary to prove all of her injuries and their impact on her will

significantly exceed 6% of her total damages.

[6]

The petitioner Bong Wong Kim settled a motor vehicle action on March 23,

2021—some six weeks after the regulation came into effect. He is subject to the limit

on disbursement recovery contained in the regulation, although he says 99% of his

disbursements were incurred before the regulation became effective.

[7]

The petitioner Trial Lawyers Association of British Columbia (the “TLABC”) is a

is a non-profit society with a membership of more than 1400 legal professionals.

[8]

The respondents, in addition to the Attorney General of British Columbia (the

“Attorney General”), are the defendants in the actions brought by the petitioners,

Ms. Le and Mr. Kim (the “MVA Respondents”).

THE IMPUGNED REGULATION

[9]

The impugned regulation was made under the authority of s. 12.1 of the EA

(the “enabling statute”) which was added to the EA by s. 1 of the Evidence

Amendment Act, S.B.C. 2020, c. 7. That legislation came into force on August 10,

2020 and includes a provision allowing the Lieutenant-Governor in Council to make

regulations limiting disbursements in “vehicle injury proceedings.” The relevant

portions are:

Limitation on expert evidence in vehicle injury proceedings

12.1

…

(2) Except as provided under this section or the regulations,

(a) a party to a vehicle injury proceeding, other than a fast

track vehicle injury proceeding, must not tender the following

at trial:

(i) expert evidence on the issue of vehicle injury

damages, of more than 3 experts;

(ii) more than one report on the issue of vehicle injury

damages from each expert referred to in subparagraph

(i),

Le v. British Columbia (Attorney General)

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(b) a party to a fast track vehicle injury proceeding must not

tender the following at trial:

(i) expert evidence on the issue of vehicle injury

damages, of more than one expert;

(ii) more than one report on the issue of vehicle injury

damages from the expert referred to in subparagraph

(i), and

(c) the court 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.

(3) Despite subsection (2), if the parties to a vehicle injury proceeding

appoint a joint expert, a party may tender at trial the expert evidence

of that joint expert.

(4) With the consent of all other parties to a vehicle injury proceeding,

a party may tender at trial

(a) expert evidence of one or more additional experts, despite

the limit set out in subsection (2) (a) (i) or (b) (i), or

(b) one or more additional reports from an expert referred to in

subsection (2) (a) (i) or (b) (i) or paragraph (a) of this

subsection, despite the limit set out in subsection (2) (a) (ii) or

(b) (ii), as applicable.

(5) On application by a party to a vehicle injury proceeding, the court

may, if satisfied that the conditions set out in subsection (6) are met,

grant leave to

(a) allow expert evidence of one or more additional experts to

be tendered, despite the limit set out in subsection (2) (a) (i) or

(b) (i), or

(b) allow the party to tender as evidence one or more

additional reports from an expert referred to in subsection (2)

(a) (i) or (b) (i), (4) (a) or paragraph (a) of this subsection,

despite the limit set out in subsection (2) (a) (ii) or (b) (ii), as

applicable.

(6) The following are the conditions for the purposes of subsection (5):

(a) the subject matter of the additional evidence to be tendered

is not already addressed by expert evidence permitted under

subsection (2) or (4);

(b) 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.

…

(8) Nothing in this section limits any authority of the court to appoint

the court's own experts on the court's own initiative.

Le v. British Columbia (Attorney General)

(9) For the purposes of this section, the Lieutenant Governor in

Page 6

Council may make regulations as follows:

(a) respecting disbursements, including but not limited to the

following:

(i) establishing limits on the amount of disbursements

that are payable to a party in a vehicle injury

proceeding, including, without limitation, establishing

limits

(A) on the amount of disbursements payable for

an expert report,

(B) on the amount of disbursements payable as

a percentage of the total amount recovered in

an action, and

(C) in relation to expert evidence by reference

to the number of experts tendering evidence at

a trial or the number of reports by experts

tendered at trial;

(ii) authorizing the court to make an order

(A) for the amount of disbursements that are

payable to a party in a vehicle injury proceeding

in circumstances in which limits established

under subparagraph (i) do not apply, or

(B) determining whether to include or exclude

prescribed disbursements when determining

the application of a limit established under

subparagraph (i);

…

(d) providing for exemptions from the application of subsection

(2) or a regulation made under this section, including but not

limited to regulations that

(i) establish circumstances in which the exemption

applies, and

(ii) set conditions of, or limitations on, the application of

the exemption.

(10) If a regulation made under subsection (9) (a) (i) or (b) (i) is

inconsistent with a rule made under the Court Rules Act, the

regulation under subsection (9) (a) (i) or (b) (i) prevails.

[10] The petitioners do not raise any issue about the validity or constitutionality of

the enabling statue. Their challenge is limited to the impugned regulation that was

purportedly made under the statute’s authority. The regulation in its present form

Le v. British Columbia (Attorney General)

Page 7

was made effective by Order in Council on February 12, 2021, but has retroactive

effect.

[11] The petition is primarily concerned with s. 5 of the impugned regulation, which

creates a “disbursement limit” or “cap” equal to 6% of the total damages awarded by

the court or paid in settlement before trial. Disbursements paid to the Crown are

excluded from that calculation and remain fully reimbursable, as are disbursements

incurred by a party who is awarded special costs. The court is given discretion to

also exclude from the calculation the cost of an expert report on liability, but not the

cost of that expert’s attendance at trial. The limits do not apply if a notice of trial was

filed and served before August 12, 2020. Sections 3, 4 and 5 of the impugned

regulation read:

Exemptions for certain expert evidence

3

(1) In this section, "responding report" means a report served under

Rule 11-6 (4) of the Supreme Court Civil Rules.

(2) The limits in relation to expert evidence set out in section 12.1 (2)

of the Act do not apply to an expert or expert's responding report if a

party serves the responding report to respond to a report that was

served on the party within 126 days before the scheduled trial date for

the vehicle injury proceeding.

(3) The limit in relation to reports from experts set out in section 12.1

(2) (a) (ii) or (b) (ii) of the Act does not apply to a supplementary

report referred to in Rule 11-6 (5) or (6) of the Supreme Court Civil

Rules.

Disbursements allowed for expert reports in vehicle injury proceedings

4

(1) Subject to subsection (3) and section 5, only the following amounts

may be allowed or awarded to a party in a vehicle injury proceeding,

other than a fast track vehicle injury proceeding, as disbursements for

reports from experts on the issue of vehicle injury damages:

(a) the amount incurred by the party for up to 3 reports,

whether or not the reports were tendered at trial, provided that

(i) each report was served in accordance with all

applicable rules of the Supreme Court Civil Rules, and

(ii) each report was prepared by a different expert;

(b) the amount incurred by the party for any of the following

reports, provided the report was served in accordance with all

applicable rules of the Supreme Court Civil Rules:

(i) a report referred to in section 3 (1) or (2) of this

regulation;

Le v. British Columbia (Attorney General)

(ii) a report allowed under section 12.1 (3), (4) or (5) of

Page 8

the Act;

(c) the amount incurred by the party for a report prepared by

an expert appointed by the court on the court's own initiative

under Rule 11-5 (1) of the Supreme Court Civil Rules.

(2) Subject to subsection (3) and section 5, only the following amounts

may be allowed or awarded to a party in a fast track vehicle injury

proceeding as disbursements for reports from experts on the issue of

vehicle injury damages:

(a) the amount incurred by the party for one report, whether or

not the report was tendered at trial, provided that the report

was served in accordance with all applicable rules of the

Supreme Court Civil Rules;

(b) the amount incurred by the party for a report referred to in

subsection (1) (b);

(c) the amount incurred by the party for a report referred to in

subsection (1) (c).

(3) The limits set out in subsections (1) and (2) do not apply

(a) to amounts that were necessarily or properly incurred

before February 6, 2020 for a report from an expert, or

(b) to a vehicle injury proceeding if

(i) a notice of trial was filed and served before February

6, 2020, and

(ii) the trial date set out in the notice of trial filed in

relation to the vehicle injury proceeding was before

October 1, 2020.

[en. B.C. Reg. 31/2021, Schedule, s. 2.]

Limits on amount of disbursements

5

(1) In this section:

"disbursement limit" means, in relation to a vehicle injury

proceeding,

(a) the amount that is 6% of the total award of damages

assessed by the court in the vehicle injury proceeding or, if an

offer to settle the vehicle injury proceeding is accepted, 6% of

the amount offered, or

(b) if the court dismisses the vehicle injury proceeding or, at

the conclusion of the vehicle injury proceeding, does not make

an award of damages, the amount determined by the court;

"excluded disbursements" means the following:

(a) fees payable to the Crown under the Supreme Court Civil

Rules;

Le v. British Columbia (Attorney General)

(b) fees payable to the sheriff for non-refundable deposits in

Page 9

civil jury trials under the Supreme Court Civil Rules;

(c) disbursements incurred by a party if the court ordered the

costs of the proceeding to be paid as special costs;

(d) disbursements incurred for an expert report on the issue of

liability, if the court ordered that those expenses are excluded

disbursements.

(2) Only the following may be allowed or awarded to a party in a

vehicle injury proceeding as disbursements:

(a) disbursements up to the disbursement limit;

(b) excluded disbursements.

(3) The limits set out in subsection (2) do not apply

(a) to a vehicle injury proceeding if

(i) a notice of trial was filed and served before August

12, 2020, and

(ii) the trial date set out in the notice of trial filed in

relation to the vehicle injury proceeding is before June

1, 2021, or

(b) to a vehicle injury proceeding if

(i) a notice of trial was filed and served before August

12, 2020,

(ii) the trial date set out in the notice of trial filed in

relation to the vehicle injury proceeding is on or after

June 1, 2021, and

(iii) the court is satisfied that the party necessarily or

properly incurred disbursements before August 12,

2020 in excess of the disbursement limit.

[en. B.C. Reg. 31/2021, Schedule, s. 2.]

EFFECTS OF THE REGULATION

[12] A regulation can be set aside only if it is found to be unconstitutional or if it is

inconsistent with the objective or scope of the enabling statute. The court has no

jurisdiction to rule on the merits of the regulation, its likely efficacy, or the wisdom of

the policy that gave rise to it. That said, the impugned regulation cannot be properly

understood without reference to its practical impact, including some obvious

anomalies that it creates.

Le v. British Columbia (Attorney General)

Page 10

[13] Expert opinion evidence plays a crucial role in any case where a plaintiff

seeks damages for personal injury. The plaintiff has the onus of proving the

existence, causation and present and future impacts of their injuries, all of which

requires evidence of medical and other experts.

[14] In addition to a judgment for damages or an amount paid in settlement, a

successful plaintiff usually recovers costs and disbursements. The recoverable

disbursements include the reasonable cost of obtaining expert evidence. In most

cases arising from motor vehicle accidents, those are not actually paid by the

individually named defendants, but by the Insurance Corporation of British Columbia

(“ICBC”), a provincial crown corporation that has a monopoly on basic automobile

insurance in the province.

[15] The impugned regulation applies only to actions for personal injuries arising

from motor vehicle accidents (although amendments to the enabling statute would

permit its extension to other personal injury cases). I therefore cannot ignore the

reality that the impugned regulation operates to the immediate and primary benefit of

ICBC. That reality was previously recognized by this Court in Meckic v. Chan, 2022

BCSC 182, where Kent J. said at paras. 10 and 12:

[10]

The thinly veiled purpose of this legislation is to improve the finances

of ICBC by reducing the quantity of expert evidence in motor vehicle

accident liability claims and to thus both reduce litigation costs and produce

lower damage awards whether by way of settlement or at trial.

…

[12]

While all of this may serve the best financial interests of the

government and its Crown corporation auto insurance monopoly, it makes

more challenging the already difficult task of the Court in determining the

nature and extent of the plaintiff's injuries and the appropriate medical

treatment that might be required in the future.

[16] A claim for personal injuries arising from a motor vehicle accident is but one

kind of action in the tort of negligence. The impugned regulation only limits the

disbursements recovered by a plaintiff who was injured in an accident caused by the

negligence of a vehicle driver. It will have no application to a plaintiff who suffers the

Le v. British Columbia (Attorney General)

Page 11

same injuries in, for example, a fall caused by the negligence of an occupier of

property or in a negligently performed medical procedure.

[17] There is no necessary or direct relationship between the amount of a

damages award and the amount of disbursements that had to be incurred to obtain

it. I can and do take judicial notice that an obviously severe or catastrophic injury

and the resulting large damages may be easier to prove than a relatively less

serious but more subtle injury. In the latter type of cases, defendants rarely ignore

an opportunity to argue that some portion of a plaintiff’s claim cannot be allowed

because the plaintiff has failed to call the appropriate expert.

[18] Even identical injuries requiring the same disbursements for expert evidence

can produce widely varying awards or settlements. For example, two plaintiffs with

identical injuries may each receive an award that includes an amount for past and/or

future loss of earning capacity. That head of damages is often assessed with

reference to a plaintiff’s pre-accident income, resulting in a higher total award for the

higher income plaintiff. A plaintiff who was, for example, a highly paid professional

may receive a total award large enough to recover all or most of their disbursements

on the 6% formula, while a plaintiff with the same injuries who worked at minimum

wage may only recover a small portion.

[19] In the same way, the total amount of an award or settlement may differ

between similarly-injured plaintiffs based solely on age. A plaintiff who is nearing

retirement age will receive a smaller award for loss of future earning capacity, and

therefore a smaller total award, than a younger plaintiff with similar pre-accident

income.

[20] The petitioner Ms. Le provides a specific example. Her counsel says in an

affidavit that due to “the extent, severity, and wide-ranging nature” of her injuries,

the cost for medical-legal reports will likely be between $30,000 and $50,000, with

those costs doubling if the experts are required to attend at trial.

Le v. British Columbia (Attorney General)

Page 12

[21] But because of Ms. Le’s age, there will be no claim for lost earning capacity

and any award for the cost of necessary future care will be subject to her remaining

life expectancy. Therefore, counsel expects the cost of assembling the necessary

evidence to significantly exceed 6% of any damage award.

[22] The enabling statute and the impugned regulation include a presumptive limit

of three experts for each party, subject to the court’s discretion to allow additional

experts in defined circumstances. Like the Chief Justice in Crowder (at para. 60), I

can and do take judicial notice that there are cases that require more than three

expert witnesses and that plaintiffs who bear the onus of proof on most damages

issues often call more evidence than do the defendants.

[23] For example, in a case involving a claim for loss of future earning capacity,

the court of appeal has made clear that the court must decide on the basis of

evidence whether there is a potential future event that could lead to a loss of

capacity, then must decide whether there is a real and substantial possibility of that

event occurring, then must assess the value of that possible future loss: Rab v.

Prescott, 2021 BCCA 345 at para. 47.

[24] In a typical case, proof of that head of damages alone requires the evidence

of two experts—a functional capacity evaluator to prove limitations on the plaintiff’s

ability to work and an economist to permit some assessment of what the plaintiff’s

future earnings might have been in the absence of the injury and the present value

of what they are now able to earn. That is in addition to whatever medical evidence

is necessary to prove the underlying injuries and their severity. Depending on the

combination of injuries involved, that may require evidence of specialists in more

than one area of medicine.

[25] Rule 14-1(5) of the Supreme Court Civil Rules provides that the costs

recoverable by a successful party must include a reasonable amount for

disbursements that “have been necessarily or properly incurred in the conduct of the

proceeding.” The impugned regulation supersedes that rule: s. 12.1(9) of EA.

Le v. British Columbia (Attorney General)

Page 13

Counsel for the respondent Attorney General concedes that some plaintiffs will be

denied part of the recovery they would otherwise be entitled to.

[26] By way of example, the plaintiffs have put forward evidence of six cases

involving clients of a single law firm that went to trial in 2019 or early 2020. While

that evidence does not purport to be a scientific survey of all cases that come before

the court, there is no suggestion that the disbursement expenses referred to are

atypical.

[27] The plaintiffs in those cases each relied on between five and nine experts and

incurred total disbursement expenses ranging from approximately $48,500 to

$137,000. Total damages awarded to those plaintiffs ranged from a low of $248,222

to a high of $1,148,254.

[28] If the impugned regulation had been in effect, disbursements in all cases

would have exceeded the 6% limit—ranging from 11% to 31% of the damages

award. By my calculations, five of those plaintiffs would have each recovered

between 50% to 60% of their disbursements and one would have recovered only

19.25%.

[29] (In Crowder, the Chief Justice did not rely on similar sampling evidence

because he could take judicial notice of the number of experts that may testify in a

case. Here, the evidence includes the actual cost of obtaining and presenting that

evidence, which cannot be a subject of judicial notice.)

[30] Counsel for the petitioner Ms. Le in her personal injury actions estimates that,

due to the number of different injuries involved, experts in up to eight different

medical or therapeutic specialties will be needed to prove her damages. She may

also have to incur disbursements to retain an accident reconstruction engineer for

the purpose of proving liability and, because Ms. Le is not fluent in English, an

interpreter to attend at examinations for discovery and trial. He states:

21.

Based on my experience and while acknowledging that I do not yet

know what the total damages will be with any degree of certainty, I anticipate

that the cost of assembling the expert evidence necessary to prove the case

Le v. British Columbia (Attorney General)

Page 14

will significantly exceed 6% of the overall damages, particularly given the

complexity of her injuries and the absence of any wage loss. Any costs

incurred in excess of 6%, if that limit applies to Ms. Le, would ultimately serve

to reduce her recovery of her future care costs and/or her damages for pain

and suffering. As a result of that limit, I, as counsel, and Ms. Le, as client

through her daughter Ms Nguyen, will face difficult trade-offs between

ensuring that Ms. Le’s claim is fully investigated and convincingly proven, on

one hand, with minimizing the financial impact and risk to Ms. Le on the

other.

[31] The respondents have provided some broader statistical evidence on this

point from Christopher Ryan, director of claims strategy and programs for ICBC. In

2019, ICBC resolved at total of almost 24,000 claims. The vast majority resulted in

total awards or settlements of $100,000 or less. In 72 percent of those cases, the

plaintiff’s disbursements were in an amount equal to or less than 6% of the award or

settlement. The experience was similar at the other end of the spectrum. In cases

where the award or judgment was more than $1 million, a 6% cap would have been

sufficient to cover all disbursements in 75 percent of cases. However, disbursements

exceeded 6% of the award or settlement in approximately two thirds of the cases

where plaintiffs received an amount between $100,000 and $1 million.

[32] Mr. Ryan also presents statistics suggesting that in the first nine months of

ICBC’s fiscal year ending in March 2022, after the impugned regulation came into

effect, the average amount of settlement or judgment was approximately $100,000

and disbursements averaged only 6.8 percent. It is difficult to determine how

meaningful those averages are in light of the numerical predominance of smaller

cases.

[33] The final amount of a settlement or judgment is not easily predictable at the

time the costs for expert reports and/or testimony are incurred. Plaintiffs and their

counsel therefore will not know what amount can be spent without risk of exceeding

the 6% limit. The Attorney General acknowledges that this may require plaintiffs to

make decisions about what part of their case they wish to pursue or abandon.

[34] The impugned regulation applies a fixed limit only on the recovery of

disbursements by plaintiffs and gives the court no discretion to permit exceptions in

Le v. British Columbia (Attorney General)

Page 15

the circumstances of individual cases. But where a defendant is entirely successful,

such as when the plaintiff fails to prove liability, the disbursements recoverable by

the defendant are, of necessity, left entirely to the court’s discretion.

CROWDER V. BRITISH COLUMBIA (ATTORNEY GENERAL)

[35] The LGC’s first attempt to limit amounts paid for expert evidence came

through a change to the Supreme Court Civil Rules that was enacted in 2019. What

was then Rule 11-8 limited each party in a motor vehicle action to three experts on

the issue of damages, with only one report from each expert. Disbursement recovery

for expert reports was also limited to three reports and trial testimony of those

experts. Exceptions were allowed for additional reports by consent, responding

reports, a joint expert ordered by the court, or an expert appointed by the court.

[36] In Crowder, on which the petitioners rely heavily, Hinkson C.J.S.C. found that

Rule 11-8 (the “impugned Rule”) purported to change the substantive law of

evidence and that the power of the LGC under the Court Rules Act, R.S.B.C. 1996,

c. 80 to make procedural rules of court did not include the power to make such

substantive changes.

[120] I find that the effect of the impugned Rule is to change the substantive

law of evidence that has guided this Court from its inception, and I find that

this is not one of the exceptional cases referred to by Justice Lambert where

the Rules may create new substantive law. Accordingly, I find that the Rule

11-8 Orders (and with it, the impugned Rule) are not authorized by the Act.

[37] The Chief Justice acknowledged at para. 121 that “changes to the substantive

law could be made under primary legislation such as the Evidence Act.” But

recognizing that possibility, he went on to consider a further, constitutional issue of

whether the impugned Rule infringed on the court’s core jurisdiction under s. 96 of

the Constitution Act, 1867:

[130] Section 96 of the Constitution Act, 1867 gives the federal government

the power to appoint the judges of the superior, district and county courts in

each province. While the bare wording of s. 96 refers only to judicial

appointments, its broader import is to protect the “core jurisdiction” of the

provincial superior courts from either federal or provincial abolition or

removal: [citations omitted].

Le v. British Columbia (Attorney General)

Page 16

[38] The impugned Rule was found to infringe on the court’s core jurisdiction by

limiting the court’s ability to hear evidence necessary to decide the case before it,

and that defect was not addressed by the portion of the rule allowing the court to

appoint experts.

[184] While I accept the submission of the Attorney General that the

impugned Rule does not prevent the court from receiving expert evidence

entirely, I find that instead of leaving it to the litigants to meet their burden of

proof by adducing the necessary evidence, it places a duty on the court to

ensure that it has sufficient expert evidence before it determines a

proceeding on its merits.

[185] Considering the totality of the submissions and the evidence before

me, I find that the impugned Rule compromises and dilutes the role of the

court, and encroaches upon a core area of the court’s jurisdiction to control

its process.

[39] Crowder was not appealed. Instead, the Legislature recognized the Chief

Justice’s statement that the EA may be able to do what the Supreme Court Civil

Rules could not and re-enacted the three-expert limit in the new s. 12.1 of the EA.

However, it did so with an important qualification. Sections 12.1(5) and (6) state that,

notwithstanding the presumptive limit of three experts, the court has discretion to

allow a party to call more experts in order to prevent a party from suffering “prejudice

disproportionate to the benefit of not increasing the complexity and cost of the

proceeding.”

[40] That discretion was not present in the former Rule 11-8. If the discretion had

not been added to s. 12.1, the fact that the limit was contained in the EA may or may

not have protected it from constitutional challenge, based on the same

encroachment on the court’s core jurisdiction that was found in Crowder.

TRIAL LAWYERS ASSOCIATION OF BRITISH COLUMBIA V. BRITISH

COLUMBIA (ATTORNEY GENERAL)

[41] After this matter was argued, the court of appeal released its judgment in Trial

Lawyers Association of British Columbia v. British Columbia (Attorney General),

2022 BCCA 163 [Trial Lawyers 2022]. Because that case also dealt with changes to

way motor vehicle personal injury cases are adjudicated, counsel were given the

opportunity to make further submissions.

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[42] Trial Lawyers 2022 upheld the constitutionality of legislation that gave

jurisdiction over “minor injuries” to the Civil Resolution Tribunal, which was created

by the Civil Resolution Tribunal Act, S.B.C. 2012, c. 25. The tribunal was given

jurisdiction to determine whether an injury is minor and to determine liability and

damages up to its monetary limit of $50,000.

[43] Referring to a consultant’s report relied upon by the Province, Bauman

C.J.B.C. said at para. 148:

[148] The need for “experimentation”—for innovation—in access to civil

justice for victims of minor injuries suffered in motor vehicle accidents in

British Columbia is self-evident in light of the EY Report. That report makes

clear that the existing system of compensating for minor personal injuries in

tort is threatening the viability of the public insurer, ICBC, and equally the

actual compensation recovered by the victims of these minor injuries. …

[44] The Chief Justice also said at paras. 171 and 172:

[171] It is a jurisdiction directed at injuries that presumptively, but not

irretrievably so, are limited to $50,000 in total compensation at this time, a

sum not appreciably greater than the current jurisdiction of the Small Claims

Court in British Columbia.

[172] Clearly a broad and important field of tort claims and the

compensatory regime in respect thereof is left to the superior courts in British

Columbia. The law of negligence and compensation for damages suffered

thereby will continue to be developed in the superior courts and will guide the

CRT in the exercise of its jurisdiction under the impugned scheme.

[45] Trial Lawyers 2022 was a challenge to a statute on purely constitutional

grounds. It did not raise an administrative law issue, such as the petitioners raise

here, of whether a regulation is consistent with its enabling legislation.

[46] On the constitutional issue, the Court was dealing with the entire removal of a

certain category of cases from this Court’s jurisdiction. Those cases will not be

affected at all by the regulation at issue here because, by virtue of the definition of

“vehicle injury proceeding” in s. 12.1(1) of the EA, the impugned regulation applies

only to proceedings in this Court.

[47] This case therefore deals with what the Bauman C.J.B.C. called the “broad

and important field of tort claims” that remain within the Court’s jurisdiction. In my

Le v. British Columbia (Attorney General)

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view, there is a distinction between legislation that removes a matter from the court’s

jurisdiction and a regulation that is alleged to limit the evidence that will be available

to the court on a matter that remains in the court’s jurisdiction. The latter raises very

different issues and requires different analysis. To the extent the constitutional

analysis in Crowder is relevant here, nothing in Trial Lawyers 2022 explicitly or

implicitly calls that authority into question.

ADMINISTRATIVE LAW ANALYSIS

[48] The petitioners argue that, because of consequences like the ones I set out

above, the impugned regulation is arbitrary and unfair, but they recognize that the

court’s agreement or disagreement with that characterization is irrelevant. The court

is not empowered to strike down a regulation based on its own view of fairness. A

regulation may impose adverse consequences on those subject to it if the enabling

statute permits those consequences. As I have said, no challenge to the validity or

constitutionality of the enabling statute is before me.

[49] Regulations enacted by the LGC benefit from a presumption of validity and

can be found to be ultra vires only if they are inconsistent with the objective of the

enabling statute or the scope of the statutory mandate: Katz Group Canada Inc. v.

Ontario (Health and Long-Term Care), 2013 SCC 64 [Katz] at paras. 24 and 25.

The nature of the inquiry was explained in the following statement adopted at para.

24:

In determining whether impugned subordinate legislation has been enacted in

conformity with the terms of the parent statutory provision, it is essential to

ascertain the scope of the mandate conferred by Parliament, having regard to

the purpose(s) or object(s) of the enactment as a whole. The test of

conformity with the Act is not satisfied merely by showing that the delegate

stayed within the literal (and often broad) terminology of the enabling

provision when making subordinate legislation. The power-conferring

language must be taken to be qualified by the overriding requirement that the

subordinate legislation accord with the purposes and objects of the parent

enactment read as a whole.

[50] Writing for the Court in Katz, Abella J. said at para. 28 that in order to be

found inconsistent with the statutory purpose, regulations “must be “irrelevant”,

Le v. British Columbia (Attorney General)

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“extraneous” or “completely unrelated”” to that purpose. However, in Green v. Law

Society of Manitoba, 2017 SCC 20, Abella J. (dissenting but not on this point) said at

para. 78 that “the list of adjectives set out in para. 28 [of Katz] does not represent an

exhaustive template … there are other grounds for finding delegated legislation to be

unreasonable.”

[51] In dealing with other forms of delegated legislation, such as municipal bylaws,

the Court has applied a limited test of reasonableness.

[52] In Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2 [Catalyst], a

case dealing with a municipal taxation bylaw, the Court said at para. 25:

[25]

Reasonableness limits municipal councils in the sense that the

substance of their bylaws must conform to the rationale of the statutory

regime set up by the legislature. The range of reasonable outcomes is thus

circumscribed by the purview of the legislative scheme that empowers a

municipality to pass a bylaw.

[53] In West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation

Appeal Tribunal), 2018 SCC 22 [West Fraser], which dealt with an occupational

health and safety regulation, the Court said at para. 12:

[12]

Determining whether the regulation at issue represents a reasonable

exercise of the delegated power is, at its core, an exercise in statutory

interpretation, considering not only the text of the laws, but also their purpose

and the context. The reviewing court must determine if the regulation is

"inconsistent with the objective of the enabling statute or the scope of the

statutory mandate" to the point, for example, of being "'irrelevant',

'extraneous' or 'completely unrelated'": Katz Group Canada Inc. v. Ontario

(Health and Long-Term Care), 2013 SCC 64, [2013] 3 S.C.R. 810, at paras.

24 and 28. To do this, the Court should turn its mind to the typical purposive

approach to statutory interpretation and seek an "interpretative approach that

reconciles the regulation with its enabling statute": Katz, at paras. 25-26.

[54] I note that passage confirms that the terms “irrelevant”, “extraneous” and

“completely unrelated”, as used in Katz, are examples and not a definitive test. In

West Fraser, the Court concluded that the governing statute conferred a “broad and

unrestricted delegation of power” to make “any regulation that may reasonably be

construed to be related to workplace health and safety.”

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[55] The test of reasonableness described in cases like Catalyst and West Fraser

does not invite the court to consider the reasonableness of the policy behind a

regulation or of its outcome. In Catalyst, the Court specifically rejected a test of

“demonstrable rationality in terms of process and outcome” (at paras. 22 and 23).

The test of reasonableness in this context is limited to consideration of whether the

subordinate legislation embodies a reasonable interpretation of the authority

conferred by the governing statute.

[56] The Attorney General argues that regulations made by the LGC are not

subject to the same scrutiny as regulations and bylaws of subordinate bodies such

as municipalities or administrative agencies. Among the authorities cited for that

proposition are Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019

SCC 65 [Vavilov] at para. 111 and References re Greenhouse Gas Pollution Pricing

Act, 2021 SCC 11 [Greenhouse Gas] at para. 73. I do not read either of those

passages as authority for the distinction the Attorney General relies on. In Vavilov,

the Court said:

[111] It is evident that both statutory and common law will impose

constraints on how and what an administrative decision maker can lawfully

decide: see Dunsmuir, at paras. 47 and 74. For example, an administrative

decision maker interpreting the scope of its regulation-making authority in

order to exercise that authority cannot adopt an interpretation that is

inconsistent with applicable common law principles regarding the nature of

statutory powers: see Katz Group Canada Inc. v. Ontario (Health and Long-

Term Care), 2013 SCC 64, [2013] 3 S.C.R. 810, at paras. 45-48. Neither can

a body instructed by legislation to determine what tax rate is applicable in

accordance with an existing tax system ignore that system and base its

determination on a "fictitious" system it has arbitrarily created: Montréal

(City), at para. 40. Where a relationship is governed by private law, it would

be unreasonable for a decision maker to ignore that law in adjudicating

parties' rights within that relationship: Dunsmuir, at para. 74. Similarly, where

the governing statute specifies a standard that is well known in law and in the

jurisprudence, a reasonable decision will generally be one that is consistent

with the established understanding of that standard: see, e.g., the discussion

of "reasonable grounds to suspect" in Canada (Minister of Transport,

Infrastructure and Communities) v. Farwaha, 2014 FCA 56, [2015] 2 F.C.R.

1006, at paras. 93-98.

[57] The portion of the Greenhouse Gas that the Attorney General relies on reads,

in part:

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[73]

It is notable that the GGPPA does not itself define the word

"stringency" used in ss. 166 and 189. But this does not mean that the

Governor in Council's discretion with respect to listing is "open-ended and

entirely subjective": Alta. C.A. reasons, at para. 221. Rather, the Governor in

Council's discretion is limited both by the statutory purpose of the GGPPA

and by specific guidelines set out in the statute for listing decisions: see

Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at

para. 108; Katz Group Canada Inc. v. Ontario (Health and Long-Term Care),

2013 SCC 64, [2013] 3 S.C.R. 810, at para. 24. …. In other words, although

the Governor in Council has considerable discretion with respect to listing,

that discretion is limited, as it must be exercised in accordance with the

purpose for which it was given. The Governor in Council certainly does not,

therefore, have "absolute and untrammelled 'discretion'": Vavilov, at para.

108, quoting Roncarelli v. Duplessis, [1959] S.C.R. 121, at p. 140.

[58] As I read those statements, the test of reasonableness, in the limited sense of

reasonable interpretation of the governing statute, applies equally to all subordinate

legislation. The test is a deferential one that recognizes the governing statute may

be subject to a range of possible reasonable interpretations, but the LGC does not

benefit from any different or broader definition of reasonableness.

[59] That was the approach adopted by the Federal Court of Appeal in Portnov v.

Canada (Attorney General), 2021 FCA 171. The Court said at paras. 19 and 20:

19 There are three parts to the Katz rule: (1) when a party challenges the

validity of regulations, the party bears the burden of proof; (2) to the extent

possible, regulations must be interpreted so that they accord with the

statutory provision that authorizes them; and (3) the party must overcome a

presumption that the regulations are valid. On the third part, Katz suggests

(at paras. 24 and 28) that the presumption is overcome only where the

regulations are "irrelevant", "extraneous" or "completely unrelated" to the

objectives of the governing statute. A leading commentator on Canadian

administrative law calls this "hyperdeferential"…

20 The first two parts of the Katz rule are well-accepted, judge-made

principles. The third part — the presumption and the very narrow ways it can

be rebutted — is more controversial. In my view, later jurisprudence from the

Supreme Court, particularly Vavilov, has overtaken it.

[60] And at para. 27:

27 More fundamentally, Vavilov instructs us to conduct reasonableness

review of all administrative decision-making unless one of three exceptions

leading to correctness review applies. This applies to regulations as a

species of administrative decision-making… For good measure, Vavilov cites

Green and West Fraser with approval — cases that conducted

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reasonableness review without applying the Katz rule: see paragraph 24,

above. Finally, the Katz rule applies across-the-board to all regulations

regardless of their content or context. This sits uneasily with Vavilov which

adopts a contextual approach to reasonableness review.

[61] Applying that analysis to the impugned regulation, it is clear that the

legislature gave the LGC broad discretion to limit the disbursements recoverable for

expert evidence. One of the possible methods the LGC is specifically empowered to

choose for that purpose is a limit based on a percentage of the total award and that

is exactly what the LGC has done.

[62] However, that power and its exercise must be viewed more broadly in the full

context of the relevant sections of the EA and the private law litigation it governs.

[63] The Attorney General argues that the purpose of the statute and the

regulation is to enforce the need for proportionality in vehicle injury litigation and

relies on statements to that effect in the legislative debate on the EA amendments.

[64] The concept of proportionality was specifically added to the Supreme Court

Civil Rules in the 2010 with Rule 1-3(2), which reads:

Proportionality

(2) 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.

[65]

Although proportionality is intended to be an overarching consideration, it has

not proved to be an easy one to apply in practice. As was said in Geller v. Sable

Resources Ltd., 2014 BCSC 171 at para. 11:

There is always a difficulty in defining cut-offs in legal matters strictly in

monetary terms. The amount involved may bear no relation to the complexity

of a matter, the importance of a matter to the parties, or its value as a

precedent.

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[66] Proportionality, as the rule defines it, is even more difficult to apply in

personal injury cases than it may be in some other areas of civil litigation. Parties are

often unable to make a reasonable estimate of the “amount involved” until expert

reports have been obtained and exchanged 84 days before trial. Even then, the

matters shown to be at issue may be such that the amount involved is ultimately

defined as whatever the court finds it to be based on the evidence.

[67] Nevertheless, the enabling statute creates, in s. 12.1(2), a presumptive limit

of three experts on damages for each party in vehicle injury cases. In effect, the

legislature has deemed that to be the ordinary limit of what is to be considered

proportional. As part of that deemed proportionality, it has given the LGC broad

discretion to define what it considers a reasonable and proportional amount of

recoverable disbursements.

[68] But the same statute also recognizes that there will be cases where a proper

regard to proportionality and the interests of justice may introduce different

requirements. The statute gives the court discretion to allow a party to call evidence

of additional experts if application of the presumptive limit would result in serious

prejudice. To repeat, s. 12.1(6)(b) allows the court to permit additional experts if:

(b) 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.

[69] The plain language of that section includes the legislature’s recognition that

additional costs will be involved in cases where the court exercises that discretion.

[70] The impugned regulation applies the same limit of 6% of total damages to all

cases, without regard to the legislature’s recognition of judicial discretion and the

increased costs likely to flow from it. The discretion is specifically provided to avoid

serious prejudice, but the impugned regulation creates a financial barrier or

disincentive, and therefore possible further prejudice, to litigants asking the court to

exercise that discretion.

Le v. British Columbia (Attorney General)

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[71] Because the impugned regulation fails to recognize the judicial discretion

contained in the governing statute, I find it to be inconsistent with the objective,

language and purpose of the statute and is therefore not authorized by s. 12.1 of the

EA.

[72] Although I find that lack of judicial discretion to be the major reason the

impugned regulation is inconsistent with the enabling statute, there is a further

inconsistency in relation to some cases. Section 12.1 of the EA creates a limit that

expressly applies to expert evidence on “vehicle injury damages.” In authorizing the

LGC to enact regulations, it provides the LGC may do so “[f]or the purposes of this

section [12.1 of the EA].” It says nothing about experts needed to prove a

defendant’s liability. But s. 5(1) of the impugned regulation also denies recovery of

the cost of a liability expert’s attendance at trial. I find that to be a limitation on

recovery not contemplated by the governing statute.

CONSTITUTIONAL ANALYSIS

[73] The above analysis is based on administrative law principles. But if I am

wrong in my application of those principles, I would reach the same result on

constitutional grounds.

[74] In Crowder, the Chief Justice found that the rule at issue unconstitutionally

infringed on the court’s “core jurisdiction” by limiting the court’s discretion and its

ability to hear evidence necessary to decide the case before it:

[164] The impugned Rule does more than limit the court’s discretion; it

eliminates it, and that is the petitioners’ complaint.

[75] Although the impugned Rule made an exception for additional experts

appointed by the court, the Chief Justice said at para. 167 that it had the effect of

asking the court “to play an investigatory function by appointing expert witnesses, in

contrast to its usual impartial, adjudicative role.” At paras. 171 and 172, he said:

[171] The rules respecting court-appointed and jointly appointed experts

were already in the Rules before the impugned Rule was enacted. So, the

“residual discretion” relied upon by the Attorney General in his submissions is

not created or preserved by the impugned Rule. In other words, Rule 11-8

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does not add anything to the rules of civil procedure; its effect is only to take

away judicial discretion.

[172] Instead, the impugned Rule places the court in a role that it should not

be placed in. Transferring the responsibility of ensuring that there is relevant

evidence upon which to decide the issues in a personal injury case from the

parties to the court does, in my view, intrude upon what has, to date, been

the core function of the court: to decide a case fairly upon the evidence

adduced by the parties.

[Emphasis in original.]

[76] I refer again to the Chief Justice’s conclusion on this point:

[184] While I accept the submission of the Attorney General that the

impugned Rule does not prevent the court from receiving expert evidence

entirely, I find that instead of leaving it to the litigants to meet their burden of

proof by adducing the necessary evidence, it places a duty on the court to

ensure that it has sufficient expert evidence before it determines a

proceeding on its merits.

[185] Considering the totality of the submissions and the evidence before

me, I find that the impugned Rule compromises and dilutes the role of the

court, and encroaches upon a core area of the court’s jurisdiction to control

its process.

[77] The new s. 12.1 of the EA preserves the discretion that was found to be

fatally absent in Crowder, but the petitioners argue that the impugned regulation

hollows out that judicial power by creating situations where evidence the court

requires cannot realistically be tendered because of the costs and risks imposed on

the individual plaintiff. They say the government cannot, with one hand, rely upon

and use the discretionary power of the court as a safeguard for constitutionality,

while with the other hand, use the impugned regulation to prevent or impede the

parties’ evidence from being adduced.

[78] The Attorney General argues that the constitutional right to place necessary

evidence before the court does not include a constitutional or common law right to a

costs regime that requires the opposite party to pay the costs of obtaining and

adducing that evidence. The Attorney General points out that costs regimes adopted

by different jurisdictions range, at one extreme, from no costs at all, as in most U.S.

jurisdictions, to, at the other extreme, full indemnity as in the United Kingdom. That

is generally true, although I have been referred to no jurisdiction that singles out for

Le v. British Columbia (Attorney General)

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different treatment a particular category of individual plaintiffs and defendants within

a single cause of action.

[79] The petitioners do not suggest a constitutional right to a particular costs

regime. They submit the issue is one of access to justice.

[80] In some cases, the petitioners argue, the impugned regulation will place the

disbursement cost of proceeding to trial entirely upon the plaintiff because, based on

the amount of damages the plaintiff hopes to prove, the cap will have been

exhausted before trial. In other cases, plaintiffs may decide they simply cannot afford

to proceed with some portion of their claim or to present the evidence the court

requires to consider an award under a particular head of damages. The Attorney

General acknowledges that some plaintiffs will have to make those choices and that

is indeed one of intended effects of the impugned regulation.

[81] Where a plaintiff has incurred disbursements that exceed the 6% maximum,

the disbursements will have to paid out of the damage award, reducing the amount

the court has found to be necessary to replace lost income or provide necessary

future care.

[82] The Attorney General and the MVA Respondents point out that there is

nothing unusual about plaintiffs not actually receiving the full amount of their damage

award or settlement. Plaintiffs must also pay legal fees, usually a percentage of the

award or settlement set out in a contingency fee agreement. However, a shortfall

due to the need to pay legal fees arises out of a contractual arrangement freely

entered into between the plaintiff and counsel. That is not comparable to a situation

where that result is imposed by legislation.

[83] In arguing that there is no constitutional right to a particular economic model

of litigation or costs regime, the Attorney General relies on British Columbia

(Attorney General) v. Christie, 2007 SCC 21 [Christie], where the Supreme Court of

Canada considered a challenge to a 7% tax on the cost of legal services. It rejected

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the idea of a broad constitutional right to “legal advice, services and disbursements.”

(at para. 13).

[84] In effect, the Attorney General argues that if there is no universal

constitutional right to the assistance of a lawyer, there can be no such right to the

assistance of an expert witness. The difference, in my view, is that the ability of a

party to obtain and present expert evidence goes to that party’s ability, with or

without counsel, to provide the court with the evidence it needs to decide a case on

its merits.

[85] I agree with the petitioners that the more applicable authority is Trial Lawyers

Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59

[Trial Lawyers 2014]. That case concerned hearing fees that a party had to undertake

to pay in order to obtain a trial date. It arose out of a family law case where the total

hearing fees would have been in an amount that almost equalled the net monthly

income of the family (at para. 5).

[86] Referring to s. 92(14) of the Constitution Act, 1867, which gives a provincial

legislature power make laws in relation to the administration of justice in the

province, the Court said at para. 24:

[24]

On its face, s. 92(14) does not limit the powers of the provinces to

impose hearing fees. However, that does not mean that the province can

impose hearing fees in any fashion it chooses. Its power to impose hearing

fees must be consistent with s. 96 of the Constitution Act, 1867 and the

requirements that flow by necessary implication from s. 96. ...

[87] The hearing fee scheme at issue was found to unconstitutionally prevent

access to the courts because it did not provide the court with sufficient discretion to

allow exemptions in appropriate cases:

[43]

I conclude that s. 92(14), read in the context of the Constitution as a

whole, does not give the provinces the power to administer justice in a way

that denies the right of Canadians to access courts of superior jurisdiction.

Any attempt to do so will run afoul of the constitutional protection for the

superior courts found in s. 96.

…

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[48]

It is the role of the provincial legislatures to devise a constitutionally

compliant hearing fee scheme. But as a general rule, hearing fees must be

coupled with an exemption that allows judges to waive the fees for people

who cannot, by reason of their financial situation, bring non-frivolous or non-

vexatious litigation to court. A hearing fee scheme can include an exemption

for the truly impoverished, but the hearing fees must be set at an amount

such that anyone who is not impoverished can afford them. Higher fees must

be coupled with enough judicial discretion to waive hearing fees in any case

where they would effectively prevent access to the courts because they

require litigants to forgo reasonable expenses in order to bring claims. This is

in keeping with a long tradition in the common law of providing exemptions for

classes of people who might be prevented from accessing the courts – a

tradition that goes back to the Statute of Henry VII, 11 Hen. 7, c. 12, of 1495,

which provided relief for people who could not afford court fees.

[88] In coming to that conclusion, the Court specifically distinguished Christie:

[41]

This Court's decision in Christie does not undermine the proposition

that access to the courts is fundamental to our constitutional arrangements.

The Court in Christie – a case concerning a 7 percent surcharge on legal

services – proceeded on the premise of a fundamental right to access the

courts, but held that not "every limit on access to the courts is automatically

unconstitutional" (para. 17). In the present case, the hearing fee requirement

has the potential to bar litigants with legitimate claims from the courts. The

tax at issue in Christie, on the evidence and arguments adduced, was not

shown to have a similar impact.

[89] I note in passing that, although the majority of the Court in Trial Lawyers 2014

decided the matter on constitutional grounds, Cromwell J., in a separate concurring

judgment, reached the same result on the administrative law principles discussed

earlier in these reasons.

[90] The impact of the impugned regulation on individual plaintiffs will obviously

vary depending on the circumstances of each plaintiff and the issues in each case.

But I am satisfied, on the basis of the evidence and on those aspects of the civil

litigation system of which I am entitled to take judicial notice, that the impugned

regulation, in its present form, will prevent or discourage some plaintiffs from

accessing the court for a decision of their case on its merits. 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

Le v. British Columbia (Attorney General)

Page 29

expert reports, but will be unable to proceed to trial because of the additional costs

and risks associated with having those experts testify.

[91] Like the hearing fees that were at issue in Trial Lawyers 2014, a limit on

disbursements comes within the province’s constitutional jurisdiction over the

administration of justice, but that jurisdiction must be exercised in a manner that is

consistent with other constitutional requirements:

[32]

The historic task of the superior courts is to resolve disputes between

individuals and decide questions of private and public law. Measures that

prevent people from coming to the courts to have those issues resolved are

at odds with this basic judicial function. The resolution of these disputes and

resulting determination of issues of private and public law, viewed in the

institutional context of the Canadian justice system, are central to what the

superior courts do. Indeed, it is their very book of business. 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).

CONCLUSION

[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.

[94] The parties are at liberty to make written submissions as to costs of this

petition, provided that the petitioners do so within 30 days of the date of these

reasons. The respondents may reply to those submissions within two weeks of their

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receipt and the petitioners may file any reply one week later.

“N. Smith J.”