Another Section 96 Case: Crowder v. British Columbia (Attorney General) 2019 BCSC 1824

The unusual background to Crowder v. British Columbia (Attorney General)[1] related to a change to the province’s Supreme Court Rules[2]designed to reduce the cost of litigation in road traffic accident cases by limiting to three the number of expert reports which could be tendered in evidence and be the subject of disbursements.

Under s. 1 of the Court Rules Act,[3] the Lieutenant Governor in Council has the authority to make rules “governing the conduct of proceedings” in the province’s courts – s. 6 of the statute provides that such rules can only be made on the recommendation of the Attorney General subsequent to consultation with the relevant chief justice. A practice had grown up of this rule-making power only being exercised on the advice of the (non-statutory) Rules Revision Committee. Here, however, the Attorney General issued a statement that “The rules committee did not recommend these changes and was not asked to approve these changes. These changes were a decision made by government”.

Hinkson CJ held that the changes to the rules relating to expert evidence were ultra vires the Act, as “[t]here is no express authority in the Actwhich allows the Lieutenant Governor in Council to effect a change in substantive law through rules of civil procedure”,[4] and unconstitutional, as the new Rule “compromises and dilutes the role of the court, and encroaches upon a core area of the court’s jurisdiction to control its process”.[5]

As to the first point, Hinkson CJ applied the Supreme Court’s decision in Katz Group Canada Inc. v. Ontario (Health and Long-Term Care).[6] But there, Abella J took care to observe that a reviewing court should take a “broad and purposive approach . . . consistent with this Court’s approach to statutory interpretation generally”;[7] Hinkson CJ’s fine distinction between matters of substance and procedure sits uneasily with this observation and, indeed, with the Court’s extremely permissive approach to the scope of regulatory authority in cases subsequent to Katz.[8]

As to the second point, describing the control of expert evidence as part of the core of judicial power has the potential to upend a significant amount of provincial regulation of court practice. It represents a further extension of the already expanded meaning given to s. 96 in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General).[9] Hinkson CJ did, however, take pains to emphasize that whereas other provinces which have regulated expert evidence have permitted judges to go over and above statutory minima, the change at issue “eliminated judicial discretion”.[10]

Nonetheless, given that the concern of the s. 96 jurisprudence has been to protect superior courts from encroachment by other decision-making bodies (and, at the outer limit in Trial Lawyers, to protect public access to the superior courts), the Crowder decision represents a significant innovation and one which at least dangles the keys to the floodgates in front of the country’s plaintiff bar.

H/T Patrick Baud

[1] 2019 BCSC 1824 [Crowder].

[2] BC Reg 168/2009.

[3] R.S.B.C. 1996, c. 80.

[4] Crowder at para 114.

[5] Crowder at para 185.

[6] 2013 SCC 64, [2013] 3 SCR 810 [Katz].

[7] Ibid at para 26, citing United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City), 2004 SCC 19, [2004] 1 SCR 485, at para. 8.

[8] See e.g. Green v. Law Society of Manitoba, 2017 SCC 20, [2017] 1 SCR 360; West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22, [2018] 1 SCR 635; Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 SCR 293; Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33, [2018] 2 SCR 453.

[9] 2014 SCC 59, [2014] 3 SCR 31.

[10] Crowder at para 193.

This content has been updated on November 8, 2019 at 11:53.