A recent decision by the Supreme Court of British Columbia, Shrieves v. British Columbia (Attorney General), 2025 BCSC 1792, has upheld a key part of the province’s efforts to control motor vehicle litigation costs: s. 5(8)(a) of the Disbursements and Expert Evidence Regulation (DEER). This provision mandates that applications to exclude certain disbursements from a 6% cap on recoverable damages must be made before those costs are incurred.
The Road to This Judgment
This ruling is the latest chapter in a series of challenges against legislative reforms designed to reduce the significant costs associated with motor vehicle collision proceedings, often ultimately borne by the Insurance Corporation of British Columbia (ICBC). Earlier versions of DEER, which imposed a strict 6% cap without judicial discretion, were successfully challenged in Le v. British Columbia (Attorney General), 2022 BCSC 1146 (affirmed on appeal, 2023 BCCA 200). In Le, courts found the cap invalid on administrative and constitutional grounds due to the lack of any discretion for judges to make exceptions.
In response, the province amended DEER in 2023, introducing provisions that do allow courts to exclude disbursements from the 6% limit, thereby granting the much-needed judicial discretion. However, these amendments came with a severe condition: applications for exclusion must be made before the disbursements are incurred (s. 5(8)(a)). It was this timing requirement that Joanne Lesley Shrieves and the Trial Lawyers Association of British Columbia (TLABC) challenged.
The Petitioners’ Arguments
The petitioners raised two primary concerns about s. 5(8)(a):
- Administrative Law: They argued the provision was an unauthorized or unreasonable exercise of the Lieutenant Governor in Council’s (LGIC) authority, contending it frustrated the purpose of the Evidence Act and failed to consider Charter values.
- Constitutional Law: They claimed s. 5(8)(a) infringed s. 15 of the Canadian Charter of Rights and Freedoms (equality rights), particularly impacting plaintiffs with disabilities.
The Court’s Verdict: Authorized and Reasonable
Justice Giaschi ultimately dismissed the petition, finding s. 5(8)(a) of DEER to be both within the LGIC’s regulation-making power and consistent with the Evidence Act’s objectives.
On the administrative law challenge, the court applied a “reasonableness” standard, concluding that the LGIC’s broad power to regulate disbursements, including setting limits and authorizing exclusions, encompassed the authority to prescribe when such applications must be made.
The court rejected the argument that requiring applications in advance forced plaintiffs to disclose privileged information. Justice Giaschi stated that DEER “does not compel a plaintiff to disclose information that is subject to litigation privilege or solicitor-client privilege,” as bringing such an application is an option, not a requirement. Furthermore, case law has shown courts are liberal in applying evidentiary requirements, avoiding demands for plaintiffs to “open their files.” Requiring advance applications, the court noted, actually advances the objectives of the Evidence Act by promoting proportionality and reducing litigation costs through early assessment and certainty.
The court also dismissed claims of inconsistency with the Evidence Act regarding the timing of expert applications and disproportionate prejudice, noting that the petitioners had narrowed their challenge to the timing rule, not the 6% cap itself, and the amendments address the problem of disproportionate prejudice by providing judicial discretion. Lastly, the court found that the Doré framework for considering Charter values in administrative decisions does not apply to regulations, which are laws of general application.
Regarding the s. 15 Charter challenge, the court found no infringement. It determined that DEER does not create a distinction based on disability on its face, and the petitioners failed to provide sufficient evidence to demonstrate a disproportionate impact on disabled plaintiffs. The court highlighted that DEER, by allowing for the exclusion of disbursements to alleviate prejudice, actually alleviates disadvantage rather than exacerbating it.
The judgment demonstrates the province’s power to regulate litigation costs in motor vehicle claims. While judicial discretion to exceed the 6% disbursement cap now exists, plaintiffs must proactively seek these exclusions before incurring significant expenses. This aims to foster cost-conscious litigation from the outset, aligning with the objectives of proportionality and reducing the overall expense of motor vehicle injury proceedings.
