04 Apr Limit on Expert Reports in ICBC Claims
ICBC is Limiting Expert Reports, What Does This Mean for Your Claim?
On February 11, 2019, the NDP, through the Attorney Genera (David Eby), unilaterally changed the Rules of Court without the usual consultation with the Rules of Court Committee, a committee which is made up of lawyers and judges jointly appointed by the Chief Justice and David Eby.
The new Rule limits the use of quantum expert reports to one only if the case in under Fast Track Litigation, a program put in place to streamline trials that can be heard in 3 days and/or are under $100,000 in value. All non-Fast Track actions have a limit of 3 quantum expert reports. If an injured victim wants a further report, he/she must either agree to a “joint expert” with ICBC or have the Court appoint an expert. In practice the “joint expert” and Court appointed expert has proved not viable as getting the plaintiff and defence to agree to an expert is unrealistic.
The Rule was effective immediately on experts reports that had not already been formally served on ICBC. In the result, this was a major “blindside” to lawyers and their clients especially since tens of thousands of reports on existing files still had not been served on ICBC because many lawyers tend to serve the reports closer to the 84-day service deadline before trial for tactical reasons.
In the weeks following the blindside, the judiciary was using judicial discretion in ignoring the Rule and the legal profession was mounting a constitutional challenge on the Rule. Doctors and referral agencies practicing in the area of ICBC medical assessments saw a large-scale cancelation of medical assessments. Law firms were realigning the strategy on each file by cancelling medical assessments and/or trying to remove the file from Fast Track to get access to 3 experts not 1 expert.
ICBC Backing Up from Mounting Pressure
Given the mounting pressure, the NDP backed off somewhat when they announced on March 25, 2019 that the Rule did not apply to 2019 trials.
Backing up, the NDP’s rational for the Rule is there would be a $400 million yearly cost saving to ICBC with the dramatic curtailment of expert reports. Most lawyers will agree that the cost of medical expert reports has been skyrocketing especial since most medical bookings are now done through referral agencies as a cost of $1000-$1500 per referral. Instead of “capping” the cost allowed for a medical report at say $2,000, like they have done for “minor injury” claims subject to the Civil Resolution Tribunal, the NDP decided to limit the number of experts allowed on an ICBC file.
This may sound like a great idea but in reality, it is not like lawyers are running around getting unnecessary reports for their clients. Rather, most lawyers get the bare minimum of reports to prove the case as these reports are very expensive and the law firm almost always has to pay the upfront cost of the reports pending the resolution of the file.
The limit on expert reports is a one-sided advantage to ICBC which will result in a much greater cost savings to ICBC than projected because the settlements or judgements of many cases will be smaller on the basis that the claimant has not “proven his/her case”. That is, ICBC often scoffs at settlement offers unless they are fully backed by expert reports and pays less unless there is “paper” to prove the case. Similarly, due to the evidentiary requirements of the Court system, the claimant must prove his/her case and without expert reports, how can the case be fully proven?
The 3 expert report Rule will impact the catastrophic cases the most. Often, these cases require multiple experts because not one expert can talk on many of the live issues like the physical injuries, psychological injuries, ability to work, need for care, life expectancy, etc… Without the expert reports, how can an injured victim prove all aspects of his/her case? The end result is the injured victim will not get full and fair compensation for the injuries.
Another obvious problem is that if a trial is adjourned or postponed, there is no ability to reorder current expert reports. Also, the practice of ordering last minute reports close to the 84 day service deadline before trial will become the norm.
In the meantime, ICBC defence team really loses nothing from the expert report limit as it is a rare file that they need to hire more than 3 experts in defence of any file. The reason being, ICBC does not have to prove the claim. It is the injured victim that has that burden.
There are two unintended consequences that will negatively impact ICBC with this Rule change driving up litigation costs and lengthening the natural life of the file. The first is Fast Track Litigation is basically dead as no right-thinking plaintiff lawyer will file under that program as to do so would limit the proof of the case to one expert. The second is that lawyers can no longer order early expert reports to facilitate an early settlement as to do so would reduce the number of available reports to be ordered closer to trial. In essence, the Rule guarantees long protracted litigation driving up ICBC costs.
When you pull back $400 million a year from the medical profession, you can be rest assured there is going to be carnage. With the loss of medical assessment money, you can expect many of the referral agencies to either close or down size. You can expect doctors to no longer afford to hire staff. You can expect the doctors to have to make up income which will reduce pro bono work for the most vulnerable and in need. You can expert highly specialized doctors to leave the Province to a less hostile economic environment.
In summary, The Rule restricting the number of expert reports was a knee-jerk reaction by the NDP to save ICBC money without a lot of thought. The Rule will lengthen the litigation process driving up costs to ICBC. The most seriously injured victims are the ones who are most impacted by the Rule. The medical profession will be severely impacted even driving specialists out of the Province.
An easy solution would have been to cap the amount an expert can charge for a report.
Written by Wes Mussio of Mussio Goodman Law Group