IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150402

Docket: 49573

Registry:
Nanaimo

Between:

Christine
Bayfield

Plaintiff

And:

Her
Majesty the Queen in Right of the Province of British Columbia

Defendant

Before:
The Honourable Mr. Justice Mackenzie

Oral Reasons for Judgment

(In
Chambers)

[1]            
THE COURT: This is an application by the defendant, the
Province of British Columbia, to exclude an expert report Ms. Bayfield, the
plaintiff, wishes to introduce in her upcoming trial. The salient facts of the
claim are the plaintiff, Ms. Bayfield, was involved in a single motor vehicle
accident on the Inland Island Highway on Vancouver Island in March 2005. She
was severely injured, suffering brain damage and paralysis of her left arm. An
action was commenced by writ and statement of claim in March 2007.

[2]            
After the accident occurred, the RCMP traffic report indicated that
there had been significant amounts of water on the surface of the pavement and
at the same time the author of the report noted there were observations about
slope and elevation of the highway at that location. As a result of these
observations, the plaintiff retained a Mr. Evans, purportedly an expert in the
area of forensic traffic engineering, highway design and construction. He
prepared a report on April 30th, 2008, addressing "the sole issue of liability".

[3]            
Subsequent to Mr. Evans’ report, counsel for the plaintiff also
delivered expert reports to the defendant prepared by a Mr. Lisman, apparently
a past employee of the defendant. These reports were dated January 29th, 2010,
and March 21st, 2014. In response, the Province retained Mr. Rempel as an
expert in accident reconstruction. Mr. Rempel provided reports dated March
21st, 2014, an April 30th, 2014, reply to Mr. Lisman’s report, and a May 2nd,
2014, reply report to Mr. Evans’ 2008 report.

[4]            
I am going to stop there and simply state that if for any reason I have
got dates wrong or whether it was a reply or re-reply, it is not overwhelming
in my opinion with respect to my decision today, and I just want to mention
that to counsel.

[5]            
In any event, Mr. Lisman then prepared a report on May 2nd, 2014, in
reply to Mr. Rempel’s April 30th reply. In due course the matter was set for a
10-day trial commencing June 16th, 2014. However, on May 20th, 2014, a trial
management conference was held in front of Justice Schultes. At that time
counsel for Ms. Bayfield advised defence counsel and the court that Mr.
Evans would be unable to testify because of medical reasons described as early
and rapid onset dementia according to plaintiff’s counsel.

[6]            
As a result, there was a consent adjournment of the trial on condition
that plaintiff’s counsel:  (a) file and serve a notice of claim within 21 days;
(b) make best efforts to serve a replacement expert report by January 1, 2015;
and (c) make an application for documents or further examination of discovery
on or before Monday, September 1st, 2014. As a result of this consent order the
trial was adjourned to June 1st, 2015, approximately 60 days from today’s date.

[7]            
While conditions (b) and (c) of that agreement were complied with, the
plaintiff did not serve a replacement expert report by January 1, 2015. The
plaintiff’s counsel did, however, deliver an expert report by a Mr. Adam on
March 5th, 2015. The defendant acknowledges this report addresses the issue of
liability, but also submits it goes well beyond Mr. Evans’ report, as it
references Mr. Rempel’s reply report to the November Evans report.

[8]            
As noted by counsel for the defendant on the present application, this
report was delivered to the defendant two business days before the 84-day
deadline for service of expert reports prior to trial pursuant to Rule 11-6(3).
Counsel for the defendant also points out that Mr. Adam’s letters of
instruction from plaintiff’s counsel were dated February the 18th and 19th of
2015, 48 and 49 days after the deadline for the replacement report to be served.
The defendant says this delay in instructing the new expert can hardly be
equated to best efforts.

[9]            
In this regard the defendant says the agreement reached at the TMC has
been elevated to an order and the court should not interfere with the clear
agreement reached between counsel which, in the defendant’s view, was a
settlement between counsel which alleviated the necessity for a possible
contested adjournment application as brief as that particular application may
or may not have been. The defendant also emphasizes at no time between May 2014
and January 1st, 2015, did plaintiff’s counsel advise the defendant he was
experiencing any difficulties in obtaining an expert report to replace Mr. Evans’
report, nor was there any request for an extension of time to deliver the
replacement report prior to January 1st, 2015.

[10]        
It is in these circumstances, therefore, that the defendant seeks an
order that the expert report completed by Mr. Adam be ruled inadmissible at the
June 2015 trial, as well as an order that the plaintiff be precluded from
filing another expert report respecting the liability of the Province in this
particular action. In this regard, the contents of the consent order are clear.
On the other hand, the defendant’s counsel on this application acknowledges
that best efforts, as that phrase is used, embarks some ambiguity in the terms
of the agreement. In any event, in the circumstances it was, in my view, clear
an adjournment would be granted at the TMC, given the unforeseen medical
condition of Mr. Evans.

[11]        
As such, there is no question in my mind that this was a reasonable
agreement reached between counsel and, as the defendant has submitted in this
application, was not varied or set aside since it came into effect last May. However,
the defendant’s application today centres on the agreement between counsel that
plaintiff’s counsel would make best efforts to retain and instruct a new expert
and deliver a report from that expert within the timeframe provided for in the
agreement and the subsequent order that incorporated counsel’s agreed to terms.

[12]        
In this regard, the defendant says plaintiff’s counsel has breached the
agreement by not establishing he made best efforts to obtain and deliver a replacement
report before January 1st. The defendant further submits that the agreement to
adjourn the 2014 trial contained "strict timelines" and pursuant to
the decision of Atmospheric Diving Systems v. International Hard Suits,
89 B.C.L.R. (2d) 356, the concept of best efforts imposes a higher obligation
than a reasonable effort and means taking all reasonable steps to achieve the
objective "leaving no stone unturned".

[13]        
The defendant points out that the plaintiff’s counsel complied with the
strict deadlines in parts (a) and (c) of the adjournment agreement, which the
defendant says is a strong indication that the deadlines in the consent order
were intended to be strictly enforceable. On this last point, however, Mr. Boe,
plaintiff’s counsel, says condition (a) was merely a housekeeping matter and of
little consequence as it did not involve a third party and in no way should be
seen as imposing a strict, inflexible deadline on the delivery of the new
expert report.

[14]        
The plaintiff says that if strict timelines had really been intended by
both counsel when terms of the adjournment were discussed at the TMC, counsel
could have easily asked for a term in the order along the lines of all
engineering reports shall be provided by January 1st, 2015, as was agreed to as
far as terms (a) and (c) are concerned. The plaintiff’s counsel also submits
that the insertion of the phrase "best efforts" must be interpreted
in context rather than as compliance to a strict timeline and should be
construed in the context of the difficulties the plaintiff was facing at the
time the trial management conference was heard in trying to replace Mr. Evans.

[15]        
The plaintiff submits that it was known to both counsel at the TMC that
replacing Mr. Evans with an engineer of similar expertise would not be easy,
particularly when they had just found out about Mr. Evans’ medical difficulties.
The plaintiff says this was the reason plaintiff’s counsel suggested the best
efforts wording and why defence counsel agreed to this terminology. The plaintiff
therefore submits the January 1st, 2015, date was a suggested timeline that the
plaintiff would endeavour to meet and it was not a stipulation or a strict term
of the order as it involved the actions of the third party expert which, as is
often the case when counsel deals with experts, is often beyond the control of
either party.

[16]        
Moreover, the plaintiff says some flexibility with respect to the
January 1st date makes sense, given the defendant did not provide the plaintiff
with any expert opinion until a few days before the expiration of the 84-day
period prior to the June 2014 trial, several years after the action was
commenced and several years after the plaintiff had served the defendant with
reports from Mr. Lisman and Mr. Evans. In addition, the plaintiff says that
whilst counsel was unable to meet the January 1st date, the replacement report
was served within the 84-day timeline consistent with the rules. However,
notwithstanding the date of service in early March, the defendant reiterates
that counsel provided Mr. Adam with instructions over a month and a half after
the expiry of the ordered deadline.

[17]        
Again the defendant says this conduct does not meet the test for best
effort, especially when the plaintiff had six months from May 2014 to January
1st, 2015, to obtain a replacement report. The defendant also submits that to
allow the replacement expert report would be prejudicial to the defendant
primarily because Mr. Adam’s report refers to Mr. Rempel’s report,
including his reply which the defendant submits is reply and sur-reply, evidence
the defendant says would have been impossible under the rules if the trial had
proceeded as originally scheduled. In addition, the defendant says delivery of
the new report in early March, two months after what the defence says is the
deadline, means the Province has lost two months in which to respond.

[18]        
As far as best effort is concerned, Mr. Boe submits he did not breach
his agreement to use his best efforts to locate an engineer with the
specialized expertise of Mr. Evans. He further submits that he never intended
his use of the phrase "best efforts" would result in a defined
contractual standard as set out in Atmospheric Diving. He submits that
best efforts was used to denote both counsels’ agreement and intention that Mr.
Boe would use whatever resources he could harness to retain a replacement
report.

[19]        
I pause here to note that Mr. Boe has stated he is basically a sole
practitioner with one assistant and limited human resources. He also submits
that other matters were being dealt with between counsel on this file which was
of significance and occupying time. Finally, Mr. Boe says the expert evidence
that Mr. Adam could provide to the court was crucial to Ms. Bayfield’s claim. In
this regard, Mr. Boe refers to the transcript of the TMC where his comments
were as follows:

And that I have to — and the
nature of the adjournment is because of a malady one of my experts has come
down with, and that I have to obtain some new expert evidence. And I will
obtain that, and give it my best efforts to obtain it and deliver it by January
1st, [2015].

As a result, Mr. Boe submits the phrase "best
efforts" was not intended to imply a condition precedent contractual
agreement between counsel such that if the timeline was not complied with, he
would be automatically precluded from filing a replacement expert report.

[20]        
As far as prejudice is concerned, the plaintiff submits that the
defendant is not prejudiced with what amounts to a relatively small delay in
the context of an action that has been progressing toward trial for several
years. The plaintiff submits the circumstances here are akin to the court’s
discretion to abridge even the 84-day time limit under the Rules of Court in
circumstances where no prejudice has occurred.

[21]        
On this point the plaintiff relies on Sam v. British Columbia,
2014 BCSC 632, where the court stated:

The Rules of Court respecting the
delivery times are intended to allow the opposite side to properly prepare. Relevant
evidence should not be excluded unless the prejudice created by receiving the
evidence is such that it ought to be excluded: Gibson v. Rickett,
[1995] B.C.J. No. 2426 at paras. 11 and 12. In C.A. v. Critchley, [1996]
B.C.J. No. 3055, the court held that if the evidence is highly relevant only
“substantial and irremediable prejudice” to the plaintiffs’ case would justify
exclusion of the evidence (at para. 12). See also Dhaliwal v. Bassi,
2007 BCSC 547.

[22]        
On this point the plaintiff submits that in fact Ms. Bayfield will
suffer much greater prejudice if the report is ruled inadmissible at trial than
any prejudice the defendant might suffer if the report is introduced into
evidence. Moreover, the plaintiff says the new report has been produced in a
relatively timely manner. As I have said, it was served within the 84-day time
limit according to the rules. Moreover, the plaintiff says she is agreeable to
abridging the time for a response down to something in the neighbourhood of 10
days if that would be of assistance to the defendant.

[23]        
Finally, counsel for the plaintiff says that the purpose of such an
agreement as was reached at the TMC and the time limit set out therein and the
rules as well, is to avoid ambush and surprise, to ensure fairness to the
parties and promote the orderly progression of the trial; see Critchley
at para. 15. On this particular point Mr. Van Camp on behalf of the
defendant on this application has properly emphasized that the question is
overall one of fairness.

[24]        
On the issue of prejudice, I am of the view it would appear there is
little doubt that an order precluding the expert report of Mr. Adam would cause
significant prejudice to Ms. Bayfield in pursuit of her claim in these
relatively unusual circumstances. In fact, counsel at the TMC for the defendant
acknowledged as much, but Mr. Van Camp’s position and submission is
well-founded when he points out that agreements between counsel and conditions
and timelines for delivery of documents and reports must be adhered to or else
the rules and agreements between counsel would be pointless and undermine the
overriding concern that proceedings be determined in an efficient and speedy
manner.

[25]        
That general observation is consistent with the comments of Justice
Bracken in Sam, where he quite properly acknowledged that especially in
complex and lengthy civil litigation there has to be some finality to the
introduction of expert reports. Notwithstanding that observation, however, the
third object of the rules plays the most significant role in any litigation and
that is that there must be a just determination of every proceeding on its
merits. While every case must be determined on its own particular facts, I do
find the comments of the court in Sam at paragraph 33 helpful and
instructive. I have already referred to that paragraph, and there is no
necessity for me to repeat it.

[26]        
In my view, an overly technical interpretation of the terms of the
agreement that was reached between both counsel at the TMC should not trump the
interests of justice and a fair hearing on the merits. I am satisfied the
intention of both counsel at the TMC was to try to move the matter along as
expeditiously as possible having regard to the inherent difficulties of
obtaining expert reports. Balancing the competing interests at play in this
particular application and having regard to the totality of the circumstances,
I am not satisfied it is appropriate to rule Mr. Adam’s expert report
inadmissible at the upcoming trial.

[27]        
Now, Mr. Van Camp, given the date involved, your second application
might be somewhat academic, but I am prepared to order that if you are still
pursuing that in the circumstances.

[28]        
MR. VAN CAMP:  Certainly I’ll pursue that.

[29]        
THE COURT:   At the same time, as I said, even though it might be
academic, I see no prejudice or unfairness to the plaintiff if I accede to Mr.
Van Camp’s request that there be an order that the plaintiff shall not file
another expert report respecting the liability of the Province in this action,
okay?  Mr. Boe?

[30]        
MR. BOE:  I understand that. I have no problem with that order if it
proceeds to trial in June of this year. In the event it’s further adjourned, I
don’t want to have my hands tied.

[31]        
THE COURT:  Respecting the liability of the defendant in this action
which is set for trial June 14th, 2015. I will just leave it at that. I am
anticipating the trial is going to proceed, okay?

[32]        
MR. BOE:  Okay.

[33]        
THE COURT:  You are not making any submission on costs at this point in
time, Mr. Van Camp?

[34]        
MR. VAN CAMP:  It appears there would be divided success.

[35]        
THE COURT:  Do you want me to make that rule or just make it costs in
the cause?

[36]        
MR. VAN CAMP:  Leave it at costs in the cause, My Lord.

[37]        
THE COURT:  Okay, fine. Thanks very much, gentlemen.

[38]        
MR. VAN CAMP:  Thank you, My Lord.

[39]        
THE COURT:  I appreciate your submissions.

[40]        
MR. BOE:  Thank you.

[41]        
THE COURT:  Thank you.

                 “B.D.
MacKenzie, J.”                     

The
Honourable Mr. Justice B.D. Mackenzie