Ruling says leave to appeal would not serve interests of justice as settlements made issues moot
In proceedings arising from motor vehicle accidents, the British Columbia Court of Appeal has refused leave to appeal the dismissal of appeals of orders excluding some disbursements from the applicable cap in the Disbursements and Expert Evidence Regulation, B.C. Reg. 210/2020 (DEER).
In Yu v. Oechsner, 2026 BCCA 57, the applicants were the defendants in two personal injury actions. The Oechsner action arose from a motor vehicle accident in June 2018. N.L. Oechsner filed a claim against the applicants M.Y. Yue and K.Y. Yuen for alleged vehicular injuries.
Oechsner retained two physicians as expert witnesses. She attended February and March 2024 assessments with the experts, who provided estimates for the costs of the opinion reports to be used at trial. Though the trial would have begun on Feb. 9, the parties have since settled.
The Ali action arose from two motor vehicle accidents in August 2018 and September 2020. P. Ali brought a claim against the applicants Mercedes-Benz Financial Services Canada Corporation, Q. Chen, X. Chen, and R. Hewary for injuries allegedly sustained in the accidents.
Ali retained three medical experts. He scheduled January and February 2024 assessments with the experts, who gave him cost estimates. The parties in the Ali action settled on May 8, 2024.
Section 5(2) of the DEER limited the amount of disbursements awarded to a party in a vehicle injury proceeding to a six percent cap of the total award of damages, as assessed by the court or agreed among the parties in an accepted settlement offer.
Under s. 5(6) of DEER, N.L. Oechsner and P. Ali successfully applied to exclude some disbursements from the cap. They claimed that they met the exclusion conditions in s. 5(8) of the DEER and that the disbursements had not yet been “incurred.”
The applicants appealed the orders excluding the disbursements. On Oct. 21, 2025, the Supreme Court of British Columbia dismissed their appeals.
The applicants sought confirmation that they had an automatic right to appeal the Oct. 21, 2025 order. Alternatively, they requested an order granting them leave to appeal.
Leave to appeal denied
The Court of Appeal for British Columbia dismissed the applications for leave to appeal. First, the appeal court ruled that the Oct. 21, 2025 order was a limited appeal order under r. 11 of the Court of Appeal Rules, B.C. Reg. 120/2022.
The appeal court explained that rr. 11(f) and (g) required the applicant to obtain leave to appeal the Oct. 21, 2025 order, which refused an appeal from an order in respect of costs under r. 11(f).
The appeal court pointed out that the DEER’s title and relevant subsections used the word “disbursements” in the sense of “costs” that a party could claim in litigation. The appeal court added that decisions reviewing the DEER’s constitutionality similarly treated the regulation governing disbursements as a subset of “costs” obtainable through litigation.
Second, the appeal court concluded that granting the applicants leave to appeal would be disproportionate, inefficient, and contrary to the interests of justice. In reaching this conclusion, the appeal court noted that:
- The issues were entirely moot in the Ali action, given the parties’ settlement
- The Oechsner action largely settled just before the hearing, with the costs of claimed disbursements falling within the $18,000 range
- After the settlements, the respondents had no incentive to participate in the appeal
- Only the insurer appeared interested in the issues involved
- The point for which leave was sought was insignificant to the action itself
- Addressing the issues might be modestly significant for those bringing or defending vehicular injury cases, the number of which were declining due to the BC law changes diverting vehicular injury cases away from the BC Supreme Court
- The appeal’s merits were weak
