We previously wrote about the Crowder decision where Chief Justice Hinkson declared amendments to Supreme Court Civil Rule 11-8 limiting expert evidence in vehicle actions to be unconstitutional. As a consequence, the Attorney General introduced Bill 9 to amend the Evidence Act. Bill 9 sought to address the Chief Justice’s criticisms of the amendments to Rule 11-8. Bill 9 received Royal Assent on July 8, 2020 and will come into force by regulation in due course.

Key changes to the Evidence Act include:

• a limit of 3 experts per party at trial in vehicle injury claims – other than Rule 15-1 Fast-Track proceedings;
• a limit of 1 expert per party at trial in vehicle injury claims in Rule 15-1 Fast-Track proceedings;
• the requirement for consent of the parties or a Court Order to tender additional expert evidence at trial; and
• limits on disbursements payable to a party, including the amount per expert report and the amount payable as a percentage of the total amount recovered in the action.

The Attorney General previously announced a limit of $3,000 per report with a 5% percentage cap on the total damages recovered in the action. He has announced that further consultation will take place before any regulation related to recoverable disbursements is imposed under the Act.

The amendments will apply retroactively to all vehicle injury actions, but will not apply:

• to an expert report served before February 6, 2020 and in accordance with the Supreme Court Civil Rules; or
• where the notice of trial was filed and served before February 6, 2020 and the trial is before October 1, 2020.

As a result of these limits on expert evidence and the associated limits on recoverable disbursements, a party to a vehicle injury claim can no longer have the expectation that all costs associated with their retention of experts will be recovered from the unsuccessful party. For our insurer clients, we hope this will affect the length and expense associated with vehicle injury trials after October 1, 2020.