Proposed amendments to Evidence Act troubling for plaintiffs: Herscu

By Kirsten McMahon

The most recent round of changes introduced to reduce the cost, complexity, and delay associated with Insurance Corporation of British Columbia (ICBC) claims have the potential to impede access to justice for motor vehicle accident victims, says Rhino Legal Finance, President and CEO Larry Herscu.

In particular, he says amendments to the province’s Evidence Act would limit recoverable disbursements in motor vehicle personal injury cases and restrict the use and cost of experts.

“On its face, the B.C. government’s goal of resolving ICBC settlement claims more efficiently is laudable,” Herscu says. “However, once you delve into the proposed legislation and look at it alongside other recent changes to the province’s insurance scheme, it paints a troubling picture for personal injury plaintiffs and the bar.”

Earlier this year, B.C. Attorney General David Eby announced the proposed changes to the Evidence Act, which include:

  • a limit of one expert and expert report for each party for fast-track claims under $100,000, and up to three experts and reports for all other claims;

  • a limit on the amount recoverable from the unsuccessful litigant for the cost of each expert report to $3,000; and

  • a limit on total court expenses to five per cent of judgment or settlement amounts for all trials after Oct. 1, 2020.

“With limits on the number of experts and expert reports, we are reducing the cost, complexity, and delay associated with expensive duelling experts,” Eby said at a press conference in late February.

“It means that claims will be resolved more efficiently,” he said.

 Global News reports the province previously attempted to limit expert reports but the change was defeated in court.

Last year, B.C. Supreme Court Chief Justice Christopher Hinkson ruled the province’s “limits on expert reports was unconstitutional because it violated the powers of a court’s control over its processes,” Global notes.

Eby remains “optimistic the legislation will withstand legal challenges,” although the Trial Lawyers Association of British Columbia (TLABC) says the legislation raises significant constitutional concerns, the media outlet reports.

Herscu agrees with TLABC and says the bill poses concerns around access to justice, noting the average cost of an expert report is much higher than the proposed $3,000 cap.

“When you also take into account the five per cent cap on recoverable disbursements — which is a significant change — a plaintiff is at a severe disadvantage in defending their rights,” he says.

Herscu says there have been other significant changes to B.C.’s insurance scheme, noting the province is set to change to a no-fault style system on May 1, 2021. As well, motor vehicle injury claims under $50,000 have moved to the province’s Civil Resolution Tribunal (CRT).

One B.C. injury lawyer has been tracking the stats of CRT decisions involving the ICBC and found that of the more than 30 results for 2020, 97 per cent were dismissed.

“That number is alarming,” says Herscu. “Even if you account for insurance fraud and merciless claims, 97 per cent is extremely high.

“At the end of the day, these wholesale changes are going to have the most impact on those who are hurt in motor vehicle accidents and their lawyers who are fighting for a fair settlement,” he says.

The Easy Legal Group of Companies is a Canadian litigation financing firm. Its lending solutions service the personal injury sector including plaintiffs with pending injury claims, their legal representatives and the service providers involved in their cases. The firm is registered to conduct business in Ontario, B.C., Alberta and the Atlantic provinces. Services are delivered through three brands: Easy Legal Finance Inc., Rhino Legal Finance and Seahold Legal Finance.