Ruling in vehicle accident case sees no disregard of litigation or solicitor-client privilege
In a personal injury case, the British Columbia Supreme Court found s. 5(8)(a) of Disbursements and Expert Evidence Regulation, B.C. Reg. 210/2020 (DEER), neither unauthorized nor unreasonable for compelling the disclosure of privileged information.
In Shrieves v British Columbia (Attorney General), 2025 BCSC 1792, the petitioners were the injured party and the Trial Lawyers Association of British Columbia (TLABC).
The injured party brought an action to recover damages for multiple personal injuries due to a May 2018 motor vehicle accident near Nelson, BC. The alleged injuries affected her head, face, neck, shoulders, chest, wrist, knee, foot, ribs, and sternum.
The woman also claimed that she suffered a concussion, chronic pain, vision problems, cognitive issues, tinnitus, difficulties sleeping, headaches, anxiety, and other psychological symptoms.
The TLABC, a non-profit society of legal professionals, primarily consisted of litigators acting for individuals in BC civil and criminal proceedings.
Both petitioners challenged the validity of s. 5 of the DEER, as amended by Order in Council 628/2023 (B.C. Reg. 241/2023). The provision limited the disbursements a vehicular injury plaintiff could recover to six percent of the total assessed damages.
The petitioners accepted that the amendments in Order in Council 628/2023 tackled the lack of judicial discretion to establish exceptions to this cap, which was the primary concern raised in Le v. British Columbia (Attorney General), 2022 BCSC 1146, and British Columbia (Attorney General) v. Le, 2023 BCCA 200.
However, the petitioners argued that the amendments led to new concerns. They alleged that s. 5(8)(a) of DEER:
- amounted to an unauthorized or unreasonable exercise of the lieutenant governor in council’s (LGIC) authority under s. 12.1(9) of BC’s Evidence Act, 1996
- lacked force and effect under s. 52 of the Canadian Charter of Rights and Freedoms because it unjustifiably breached plaintiffs’ s. 15 Charter rights
Provision upheld
The Supreme Court of British Columbia dismissed the petition upon finding that s. 5(8)(a) of DEER fell within the LGIC’s regulation-making power, aligned with the proportionality goals of s. 12.1 of the Evidence Act, and did not infringe plaintiffs’ s. 15 Charter rights.
The court noted that the parties had resolved the action seeking to recover damages for injuries allegedly arising from the motor vehicle accident after the present petition’s hearing.
The court rejected the petitioners’ argument that s. 5(8)(a) of DEER disproportionately prejudiced plaintiffs by requiring them to make an application before incurring a disbursement and forced them to prematurely disclose their case to the defendant, thus diminishing litigation or solicitor-client privilege.
The court said the petitioners exaggerated their concerns about disclosing privileged information. The court determined that DEER did not compel plaintiffs to open their litigation files to an extent that seriously eroded litigation or solicitor-client privilege.
The court explained that s. 5(6) of DEER simply offered plaintiffs the option to apply to exclude disbursements from the six-percent cap and required them to meet the conditions and criteria in ss. 5(8) and (9) of DEER if they chose to file such an application.
The court added that the case law interpreting ss. 5(8) and (9) of DEER did not support the petitioners’ claims that s. 5(8)(a) of DEER jeopardized litigation or solicitor-client privilege and instead showed the court’s liberal application of the evidentiary requirements and avoidance of interpretations compelling the plaintiffs to open their files or divulge privileged information.
Next, the court ruled that s. 5(8)(a) of DEER did not infringe s. 15 of the Charter. The court said DEER’s pertinent provisions applied equally to all plaintiffs, whether disabled or not, and drew no distinction between those with physical or mental disabilities and those without disabilities.
The court saw no disproportionate impact under part one of the test in Fraser v. Canada (Attorney General), 2020 SCC 28. The court listed five points to support this conclusion.
First, the court said the majority in British Columbia (Attorney General) v. Le, 2023 BCCA 200, pointed out that the six-percent limit would be proportionate in most cases.
Second, the court acknowledged that plaintiffs with more severe injuries were more likely to incur disbursements exceeding the six-percent cap. However, the court found no evidence that disabled persons were more likely to exceed the limit.
Third, the court saw no evidence of adverse impacts on persons who needed accessibility services.
Fourth, the court noted that plaintiffs could ask the Insurance Corporation of British Columbia if they could exclude disbursements if they were likely to go over the six-percent limit.
Fifth, the court said requiring plaintiffs to file a s. 5(6) application would not onerously burden them and would generally entitle them to the application costs if they succeeded.
Lastly, the court accepted that s. 5(7) of DEER required a plaintiff seeking to tender the evidence of over three experts and exclude disbursements from the six-percent cap to file the applications together before incurring the disbursement.
However, the court did not consider this requirement inconsistent with s. 12.1 of the Evidence Act in general or s. 12.1(5) in particular. The court went over three points to support this finding.
First, the court pointed out that the petitioners ultimately did not assail the validity of s. 5(7) of DEER.
Second, the court saw no explicit conflict between s. 12.1(5) of the Evidence Act and s.5(8)(a) of DEER.
Third, the court noted that proportionality was a primary goal of s. 12.1 and part of a broad purpose to reduce motor vehicle litigation costs. The court deemed it potentially wasteful and disproportionate if plaintiffs incurred disbursements before the determination of their status or separately filed two related applications.
