BC Supreme Court Upholds Regulation Imposing Cap on Recoverable Disbursements in Motor Vehicle Personal Injury Actions

Court Denies TLABC’s Application for Suspension of DEER Section 5

The BC Supreme Court has denied the Trial Lawyers Association of British Columbia’s (TLABC) application to suspend the Disbursements and Expert Evidence Regulation (DEER) section 5, which imposes a cap on recoverable disbursements in motor vehicle personal injury actions. The petitioners had sought an interlocutory injunction pending a constitutional challenge, but the court found that they failed to demonstrate a serious question to be tried, the risk of irreparable harm, or that the balance of convenience favored granting an injunction.

DEER Aims to Reduce Litigation Costs and Promote ICBC’s Financial Stability

DEER caps recoverable disbursements in motor vehicle injury cases to 6 percent of the total damages awarded or settlement amount, with specific exceptions. One of the aims of this regulation is to reduce litigation costs and promote the financial stability of the Insurance Corporation of British Columbia (ICBC). The court emphasized the public interest in maintaining legislative measures designed to address ICBC’s financial challenges.

Petitioners Argue Cap is Unconstitutional and Prejudices Plaintiffs

The petitioners argued that the cap was unconstitutional and unfairly prejudiced plaintiffs, forcing them to incur additional disbursements at their own expense, forego necessary disbursements, or compromise solicitor-client and litigation privilege by applying for exceptions. However, the court found these arguments speculative and unsupported by evidence.

Plaintiffs Can Still Seek ICBC’s Consent or Bring Applications Under s. 5(6) of DEER

The court noted that plaintiffs could still seek ICBC’s consent to exceed the cap or bring applications under section 5(6) of DEER without necessarily disclosing privileged information. Therefore, it ruled that the regulation did not impede access to healthcare services but merely affected financial compensation.

Balance of Convenience Favors Continued Operation of Duly Enacted Legislation

The court stressed that the balance of convenience favored the continued operation of duly enacted legislation. It noted that the petitioners failed to show that irreparable harm would result from the cap or that the risk of harm outweighed the public interest in the financial stability of ICBC. Consequently, the application to suspend the operation of the disbursement cap was dismissed.

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Originally Post From https://www.canadianlawyermag.com/practice-areas/personal-injury/bc-supreme-court-denies-injunction-against-cap-on-disbursements-in-motor-vehicle-injury-cases/386458

BC Supreme Court Denies Injunction Against Cap on Disbursements in Motor Vehicle Injury Cases