THE ADVOCATE 843
VOL. 78 PART 6 NOVEMBER 2020
5. The Act violates s. 15 of the Canadian Charter of Rights and Freedoms
(the “Charter”) because it discriminates against lower-income
British Columbians who are less able to spend the money required
to advance their personal injury lawsuit, in view of the $3,000 cap
on the amount payable for an expert report and the five per cent
cap on overall disbursements.
This article will examine the first ground in detail and leave the other
four for another day.
THE ACT IS CONSTITUTIONALLY INVALID BECAUSE IT VIOLATES THE CORE
JURISDICTION OF A SECTION 96 COURT
If the Act’s constitutionality is challenged, it can be expected that the government
will state that the concerns expressed by Chief Justice Hinkson in
Crowder have been overcome because the Evidence Act, not the rules of
court, is being amended, and trial judges now have discretion to allow additional
expert witnesses provided the prescribed test is met.
In fact, a close reading of Crowder reveals that Hinkson C.J.S.C. found
that the core jurisdiction of a s. 96 court was violated because the proposed
legislation restricted the court to an investigatory role, rather than permitting
it to adopt its traditional role as an impartial adjudicator in an adversarial
proceeding, and was contrary to the principle of party presentation.
Instead of leaving it to the litigants to meet their burden of proof by adducing
the necessary evidence, the Act places a duty on the court to evaluate
the sufficiency of the expert evidence before it determines a proceeding on
its merits. Further, the use of joint and court-appointed experts also
diverges from the principle of party presentation.
Hinkson C.J.S.C. found that the orders-in-council intruded on a core
function of s. 96 courts because they would require judges to depart from
their traditional non-adversarial role and consider how a case might be best
presented, contrary to the principle of party presentation, as follows:
166 I find that the caution expressed by Mr. Justice Iacobucci and
Madam Justice Arbour, for the majority, in Application under s. 83.28 of
the Criminal Code (Re), 2004 SCC 42, is also applicable in this case:
... once legislation invokes the aid of the judiciary, we must
remain vigilant to ensure that the integrity of its role is not compromised
or diluted. Earlier in these reasons we endorsed a
broad and purposive approach to the interpretation of s. 83.28.
This interpretation is consistent not only with the presumption
of constitutional validity, but also with the traditional role of the
judiciary. The function of the judge in a judicial investigative
hearing is not to act as “an agent of the state”, but rather, to protect
the integrity of the investigation and, in particular, the interests
of the named person vis-à-vis the state.