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in Trial Lawyers, the rule of law was used as “an interpretive aid”, not as “an
independent basis for invalidating the impugned court fees”.34
CONCLUSION
The rule of law may provide a strong secondary argument for challenging
the Act. A challenge on a rule-of-law basis is well supported in the case law,
notwithstanding contradictory authorities. The relatively modest societal
objectives that may be associated with the Act—placing restrictions on
adducing expert reports in a tort action for damages arising from a motor
vehicle accident—may make this legislation more akin to the enactments
that have been successfully challenged based on the rule of law, rather than
to those against which rule-of-law challenges have failed.
However, given the existence of those contradictory authorities, violation
of the rule of law may be more vulnerable to rebuttal as a ground for challenging
the constitutionality of the Act than the first ground (violation of
the core jurisdiction of a s. 96 court), which we discussed in the first part of
our analysis.35 It may be for this reason that Hinkson C.J.S.C. hung his hat
on that first ground in Crowder v. British Columbia (Attorney General).36
ENDNOTES
1. SBC 2020, c 7.
2. “Is the New Law Relating to Expert Witnesses in
Motor Vehicle Cases Legal? Constitutional Challenges
to the Evidence Amendment Act, 2020”
(2020) 78 Advocate 841.
3. 2015 ABQB 25 at paras 1–2.
4. 1988 2 SCR 214 BCGEU.
5. Andrea A Cole & Michelle Flaherty, “Access to Justice
Looking for a Constitutional Home: Implications
for the Administrative Legal System” (2016) 94 Can
Bar Rev 13 at 23.
6. BCGEU, supra note 4 at 228–29.
7. Ibid at 229–30.
8. 2014 SCC 7.
9. Cole & Flaherty, supra note 5 at 28.
10. British Columbia, Official Report of Debates
(Hansard), 41st Parl, 5th Sess, No 325 (5 March
2020) at 11587 (Hon D Eby), online: <www.leg.bc.
ca/content/hansard/41st5th/20200305pm-
Hansard-n325.pdf>.
11. British Columbia, Official Report of Debates
(Hansard), 41st Parl, 5th Sess, No 323 (4 March
2020) at 11530–37, online: <www.leg.bc.ca/
content/hansard/41st5th/20200304pm-Hansardn323.
pdf>.
12. 2014 SCC 59 Trial Lawyers.
13. Christian Morey, “A Matter of Integrity: Rule of Law,
the Remuneration Reference, and Access to Justice”
(2016) 49:1 UBC L Rev 275 at 300–01.
14. Cole & Flaherty, supra note 5 at 33.
15. 2020 BCCA 241 at para 74, leave to appeal
granted 2021 CanLII 24821 (SCC).
16. Ibid at para 2.
17. 2018 BCCA 385 Cambie Surgeries, leave to
appeal refused 2019 CanLII 37488 (SCC).
18. 2020 ABCA 167.
19. (1999), 186 NSR (2d) 1 (SC) Pleau.
20. (2003), 66 OR (3d) 600 (SCJ (Div Ct)) Polewsky.
21. 2005 SCC 49 Imperial Tobacco.
22. 2005 ABQB 662.
23. 2005 BCCA 631. See the discussion in Ayn James
Johnson, “Imperial Tobacco and Trial Lawyers: An
Unstable and Unsuccessful Retreat” (2019) 57:1 Alta
L Rev 29 at 48.
24. Morey, supra note 13 at 297.
25. 2007 SCC 21 Christie.
26. (1997), 40 BCLR (3d) 181 (CA) Carten.
27. Morey, supra note 13 at 296–97.
28. See Cambie Surgeries, supra note 17 at para 15.
29. 2015 ABQB 108.
30. Ibid at para 52, quoting Christie, supra note 25 at
para 23.
31. 2019 BCCA 168, leave to appeal refused 2019
CanLII 117831 (SCC).
32. 2021 SCC 34.
33. Ibid at paras 50, 63
34. Ibid at para 75.
35. Supra note 2.
36. 2019 BCSC 1824.
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