842 THE ADVOCATE
VOL. 78 PART 6 NOVEMBER 2020
dates occurring after October 1, 2020.10 Further, the government has indicated
that although the Act will apply only to motor vehicle personal injury
cases, it intends to expand the statute’s application more broadly in tort litigation,
so there is much at stake.
In 2019, the NDP government first attempted to impose these restrictions
on civil procedure by amending the rules of court by way of orders-in-
council. These amending rules did not afford trial judges any discretion to
permit more than three expert witnesses. In October 2019, in Crowder v.
British Columbia (Attorney General),11 Chief Justice Hinkson found the
orders-in-council to be unconstitutional because they violated the core
jurisdiction of a s. 96 court and therefore contravened s. 96 of the Constitution
Act, 1867. Although the plaintiffs also argued that the orders-in-council
were unconstitutional because they violated the unwritten constitutional
principle of the rule of law by impeding access to justice, Hinkson C.J.S.C.
declined to decide this point.
The NDP government then introduced Bill 9, which resulted in the Act.
The Act is substantially the same as the previous attempt to effect procedural
changes by way of orders-in-council, except that, this time, it introduces
the amendments through the Evidence Act, not the rules of court, and
affords trial judges discretion to allow for more than three expert witnesses,
or more than one in the case of a fast track proceeding, if a stipulated test
is met. The Act allows the court to permit additional experts if “the subject
matter of the additional evidence to be tendered is not already addressed by
expert evidence of the party making the application” and “without the additional
expert evidence, the party making the application would suffer prejudice
disproportionate to the benefit of not increasing the complexity and
cost of the proceeding”.12
There appear to be five bases on which the Act’s constitutionality may be
1. The Act is constitutionally invalid because it intrudes on the core
jurisdiction of a s. 96 court.
2. The Act is constitutionally invalid because it denies access to justice
and thereby violates the rule of law, an unwritten constitutional
3. The Act is constitutionally invalid because it is so vague and arbitrary
as to undermine the legal relationship between the individual
and the state, thereby offending the rule of law.
4. The Act is skeletal legislation that, being too broad, results in ultra