Case involves interpretation of 'incurred' in Disbursement and Expert Evidence Regulation
The British Columbia Supreme Court held that “incurred” under s. 5(8)(a) of the Disbursement and Expert Evidence Regulation, B.C. Reg. 210/2020 (DEER), meant the point when a party was liable to pay for an expert’s work.
In Ali v. Mercedes-Benz Financial Services Canada Corporation, 2025 BCSC 2057, two plaintiffs filed two personal injury claims arising from motor vehicle accidents.
The present proceeding revolved around s. 5 of DEER, which came into force on Nov. 27, 2023, particularly the meaning of the “incurred” in s. 5(8)(a) of DEER.
Plaintiff P. Ali in the first action retained three medical experts who set assessments in January and February 2024, while plaintiff N.L. Oechsner in the second action retained two physicians and attended assessments in February and March 2024.
The plaintiffs’ medical experts provided estimates for disbursements at trial. Ali and Oechsner filed applications on Jan. 17, 2024 and Mar. 15, 2024, respectively, to exclude these experts’ disbursements from the six-percent cap under s. 5(6) of DEER.
In the first action, the disputed disbursement concerned the report of Dr. McInnes, who had examined Ali 12 days before the filing of the application, but did not complete the expert report or issue an invoice.
In the second action, the disbursements at issue involved the reports of Drs. Cameron and Helper, who had examined Oechsner a week before the filing of the application, but did not complete their reports or issue invoices.
Associate Judges Bilawich and Scarth excluded these disbursements under s. 5(6).
Specifically, on Mar. 5, 2024, in Ali v Mercedes-Benz Financial Services Canada Corporation, 2024 BCSC 384, Bilawich excluded the disbursement for Dr. MacInnis’ examination and anticipated report upon determining that the disbursement had not been “incurred” before the filing of the application.
On March 28, 2024, in Oechsner v Yu, Vancouver Registry, No. M204577, Scarth followed Bilawich’s lead and excluded the disputed disbursements associated with Drs. Cameron and Helper.
The defendants appealed the orders of the two associate judges.
Last Sept. 15, in Shrieves v. British Columbia (Attorney General), 2025 BCSC 1792, the BC Supreme Court confirmed DEER’s constitutionality, rejected the challenge against s. 5, and highlighted the proportionality goals of BC’s Evidence Act, 1996, as reflected in DEER.
Decisions affirmed
The Supreme Court of British Columbia dismissed the appeals. The court saw no errors in Bilawich’s decision and his statutory interpretation of “incurred” or in Scarth’s decision and her reliance on Bilawich’s findings.
The court ruled that DEER’s plain language did not support the defendants’ proposed narrow and limiting interpretation.
Instead, the court held that “incurred” under s. 5(8)(a) meant the time when the party was liable to pay for the expert’s work, which would generally be the time the expert delivered their account.
The court explained that this interpretation aligned with the plain meaning of “incurred,” the proportionality objective, and the overall operation of s. 12.1 of the Evidence Act and DEER, as well as prevented prejudice to the plaintiffs.
The court determined that requiring plaintiffs in all proceedings to bring their application without having the evidence they needed to comply with s. 5(9) of DEER would unfairly prejudice them.
