The B.C. government has imposed new limits on the use of dueling experts in insurance cases, blaming the skyrocketing costs for contributing to the financial precariousness of its public auto insurer, which is on track to a billion-dollar deficit this year.
B.C. Attorney-General David Eby cited a Globe and Mail investigation into the lucrative, little-known growth industry that generates “independent medical evaluations,” as part of the rationale for limiting the use of experts in court cases. He noted both the Insurance Corporation of British Columbia (ICBC) and private lawyers are responsible for driving up the cost of settlements through the use of adversarial experts.
“I believe ICBC and the plaintiffs are operating with a very broken system. There are excesses taking place on the ICBC side, there are excesses taking place on the plaintiffs’ side, in terms of experts that are brought forward,” he told a news conference on Monday.
Mr. Eby said The Globe investigation showing ICBC’s tactics of recruiting experts to unfairly discredit injury claims was “an embarrassment for the corporation, and an illustration of why we are trying to move to reform this adversarial expert system.”
Effective immediately, the number of expert reports addressing issues such as future wage loss or future care will be limited to one expert for each side on small claims under $100,000. For major claims, three experts can be used by each side. That is about half of the number typically recruited currently to provide expert assessments in a motor vehicle-related court case in B.C.; the other provinces all have limits.
The Globe, in a 2017 investigation, found that in Ontario and B.C. alone, hundreds of Canadian doctors take in roughly $240-million a year collectively, putting their names to accident injury assessments for the auto-insurance industry. Insurers primarily use those reports as leverage to limit or cut what they pay for treatment and other benefits.
The Globe investigation prompted both British Columbia and Ontario to review how auto-accident victims are assessed. Ontario has just launched a broader review to look for greater efficiencies as the province grapples with high auto insurance rates.
Mr. Eby said he expects a fight with the province’s trial lawyers, who are already battling the province’s other changes at ICBC.
“Lawyers are not to blame for ICBC’s financial crisis,” the Attorney-General said. “The excesses of the current system is the problem, a system long overdue for reform.”
The Trial Lawyers Association of BC immediately condemned the changes.
“It is concerning … that the Attorney-General, who is responsible for the administration of justice for all British Columbians, is forcing such severe restrictions on a victim’s right to prosecute her or his claim to the sole benefit of one party, ICBC,” the organization said in a statement.
“Passing such consequential changes to our system of civil justice with no legislative debate is undemocratic.”
Until now, B.C. allowed unlimited use of adversarial experts and Mr. Eby said the limits could save $400-million a year, unless the courts routinely opt to permit additional experts. “We really need the judiciary and counsel to buy into this.”
He said the new system should encourage the use of jointly approved, neutral experts, and that will be better for claimants and ratepayers alike.
Mr. Eby said he expects the Crown corporation’s financial challenges to ease after another set of changes announced last year comes into effect on April 1.
The provincial government passed legislation last spring to curb skyrocketing payments for minor-injury claims by capping settlements and limiting when accident victims can sue.
He said he does not intend to provide a financial bailout of ICBC by taxpayers in the meantime.
ICBC has "significant capital assets, they are not insolvent,” he said. “The issue with putting money into ICBC ... is that under the current system, that money will evaporate in about a year. We have to address the underlying system.”