IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120419

Docket: M070090

Registry:
Vancouver

Between:

Jocelyn Fabretti

Plaintiff

And

Aman Jit Singh,
Satvir Singh Gill,
Greater Vancouver Transportation Authority
doing business as Translink, and
Her Majesty the Queen in Right of the Province of British Columbia
by her representative The Ministry of Transportation and Highways

Defendants

And

Insurance
Corporation of British Columbia

Third
Party

Before:
The Honourable Mr. Justice Savage

Oral Reasons for Judgment

Background

[1]            
The plaintiff has made a claim for loss of future earning capacity in
her negligence action against the defendants for a motor vehicle accident. At
the time of the accident, the plaintiff was engaged as a Regional Vice
President (“RVP”) at Primerica, an independent financial services organization.

[2]            
To substantiate her claim for future earning potential, the plaintiff
wishes to tender an expert report (the “Report”) by Barry Andruschak, National
Sales Director for Primerica. A copy of the Report is attached hereto as
Appendix A. In his Report, Mr. Andruschak provides an opinion as to the
plaintiff’s employment capacity and projected earnings into the future.

[3]            
Mr. Andruschak also provides information about earning potential
for RVPs generally at Primerica as well as specific examples of other RVPs’
past earnings, including the plaintiff’s. The defendant objects to the Report
on a number of grounds, the primary one being that Mr. Andruschak is not
properly qualified to render the opinion found in the Report respecting the
plaintiff’s future earning capacity.

Arguments

A.       The Plaintiff

[4]            
The plaintiff submits that the Report satisfies the test for expert
opinion set out in Kelliher v. Smith, [1931] S.C.R. 672, per Lamont J.
at 684:

To justify the admission of expert testimony two elements
must co-exist:

The subject-matter of the inquiry must be such that ordinary
people are unlikely to form a correct judgment about it, if unassisted by
persons with special knowledge.

The witness offering expert
evidence must have gained his special knowledge by a course of study or
previous habit which secures his habitual familiarity with the matter in hand.

[5]            
The plaintiff further refers to the Supreme Court of Canada’s decisions
in R. v. Abbey, [1982] 2 S.C.R. 24 (Abbey#1), and R. v. Mohan,
[1994] 2 S.C.R. 9. In Mohan, the Court stated the following, at 20:

Admission of expert evidence depends on the application of
the following criteria:

(a) relevance;

(b) necessity in assisting the trier of fact;

(c) the absence of any exclusionary rule; and

(d) a properly qualified expert.

[6]            
Respecting the last factor, the plaintiff submits that Mr. Andruschak’s
lack of formal training in calculating the plaintiff’s future earning capacity
is immaterial and that it is knowledge and expertise in a field that count, not
the manner in which that knowledge and expertise have been acquired: R. v.
Marquard, [1993] 4 S.C.R. 223 at 243. The plaintiff refers to the following
excerpt from Rice v. Sockett (1912), 27 O.L.R. 410, cited in The Law
of Evidence in Canada (3^rd ed, Alan Bryant et al., (Markham:
LexisNexis, 2009)) at 820:

The derivation of the term “expert” implies that he is one
who by experience has acquired special or peculiar knowledge of the subject of
which he undertakes to testify, and it does not matter whether such knowledge
has been acquired by study of scientific works or by practical observation.
Hence, one who is an old hunter, and has thus had much experience in the use of
firearms, may be as well qualified to testify as to the appearance which a gun
recently fired would present as a highly-educated and skilled gunsmith.

[Citations omitted; at 413 in Rice]

[7]            
In this case, the plaintiff states that Mr. Andruschak is the “old
hunter”, having gained “long-term and detailed knowledge of Primerica
and…experience as a highly successful part of that company.”

[8]            
Finally, the plaintiff says that it is not necessary that Mr. Andruschak
be the pre-eminent specialist in the area of his opinion and that any
discrepancies between his opinion and other experts can be remedied by
tailoring the amount of weight given to it: Lindholm v. Vankouehnett
(1998), 85 A.C.W.S. (3d) 591 (B.C.S.C.) at para. 7.

B.       The Defendants

[9]            
The defendant’s objection to the Report is based on three principal
grounds. Firstly, the defendant says that Mr. Andruschak is not a properly
qualified expert to give an opinion on the plaintiff’s future earning capacity.
While the defendant acknowledges that Mr. Andruschak holds a senior
position at Primerica and is obviously adept at selling its products, the
defendant says that “[h]e has no educational background as an economist, or a
business loss evaluator, and makes no mention of any previous experience
performing this type of work.”

[10]        
Furthermore, the defendant says Mr. Andruschak’s supposed expertise
as an expert for the purposes of assessing the plaintiff’s future earning
capacity is undermined by the fact that he is not giving an “opinion”, apparent
by his statement that the Report is a “best guess” and that his opinion is
“inevitably speculative”. Finally, the plaintiff submits that Mr. Andruschak’s
analysis in the Report is “extremely flawed”, further undermining his purported
expertise.

[11]        
Secondly, the defendant submits that the Report contains unsupported and
hearsay comments related to the status of Primerica and the credibility of the
plaintiff. As for the former matter, the defendant says the Report’s
allegations of Primerica’s status in the insurance industry are unsupported by
any studies or references. In one case where a report is referenced, “no
mention of [on] what basis the conclusion was reached” is provided. Respecting
the statements regarding the plaintiff’s credibility, the defendant submits
that “it is for the judge and jury to decided credibility, not Mr. Andruschak.”

[12]        
Thirdly, the defendant says the Report does not comply with the Supreme
Court Civil Rules, B.C. Reg 168/2009. The defendant submits that Rule
11-6(1)(f)(iii) requires that an expert report “must set out a list of every
document the expert relied upon in forming his opinion.” Specifically, the
defendant says that Mr. Andruschak “fails to mention which documents he
specifically looked at when quantifying the plaintiff’s anticipated wage loss.”

Analysis

A.       The nature of expert evidence

[13]        
In R. v. Abbey, 2009 ONCA 624 (Abbey#2), the Ontario Court
of Appeal made note of the danger of overreaching into the proper realm of the
finder of fact that can arise as a result of expert opinion. The Court stated
at para. 71:

Experts take information
accumulated from their own work and experience, combine it with evidence
offered by other witnesses, and present an opinion as to a factual inference
that should be drawn from that material. The trier of fact must then decide
whether to accept or reject the expert’s opinion as to the appropriate factual
inference. Expert evidence has the real potential to swallow whole the
fact-finding function of the court, especially in jury cases.
Consequently, expert opinion evidence is presumptively inadmissible. The party
tendering the evidence must establish its admissibility on the balance of
probabilities…

[14]        
After listing the Mohan factors noted above, the Court goes on at
para. 76 to re-state the Mohan test as a two step process:

First, the party proffering the
evidence must demonstrate the existence of certain preconditions to the
admissibility of expert evidence. For example, that party must show that the
proposed witness is qualified to give the relevant opinion. Second, the trial
judge must decide whether expert evidence that meets the preconditions to
admissibility is sufficiently beneficial to the trial process to warrant its
admission despite the potential harm to the trial process that may flow from
the admission of the expert evidence. This "gatekeeper" component of
the admissibility inquiry lies at the heart of the present evidentiary regime
governing the admissibility of expert opinion evidence: see Mohan; R.
v. D.D., [2000] 2 S.C.R. 275; J.-L.J.; R. v. Trochym, [2007]
1 S.C.R. 239; K. (A.); Ranger; R. v. Osmar (2007), 84 O.R.
(3d) 321 (C.A.), leave to appeal to S.C.C. refused (2007), 85 O.R. (3d) xviii.

[15]        
It is accepted that the two-step process described above does not and
was not intended “to alter the substance of the analysis required by Mohan”:
Abbey#2 at para. 77. Rather, as the Court in Abbey#2
discussed, distinguishing between the preconditions to admissibility and the
gate keeping function of relevance and probative value is helpful in
maintaining the distinctiveness of each line of inquiry. Before the Court is
called upon to assess the relevance and probative value of an expert’s report
at the second stage, it is crucial that the expert evidence survive the
preconditions to admissibility at the first stage:

Evidence that does not meet all of the preconditions to
admissibility must be excluded and the trial judge need not address the more
difficult and subtle considerations that arise in the "gatekeeper"
phase of the admissibility inquiry.

(Abbey, at para. 78.)

[16]        
At para. 80, the Abbey#2 Court laid out the analysis at the
first stage as follows:

In what I refer to as the first phase, four preconditions to
admissibility must be established…:

the proposed opinion must relate to a subject matter that is
properly the subject of expert opinion evidence; 

the witness must be qualified to give the opinion;

the proposed opinion must not run afoul of any exclusionary
rule apart entirely from the expert opinion rule; and

the proposed opinion must be
logically relevant to a material issue.

B.       Proper Subject Matter

[17]        
In this case, I am satisfied that the plaintiff’s future earning
capacity is a subject matter that can potentially be the subject of expert
opinion. Determining future probabilities and contingencies in a person’s
earning potential is a difficult and speculative task that benefits from
specialized analysis and expertise. The main issue in these proceedings is
whether Mr. Andruschak is properly qualified to render such an opinion.

C.       Properly Qualified Expert

[18]        
Although the courts have allowed that a person need not be formally trained
in an area of expertise to be considered an expert, the person’s experience
must relate directly to the subject matter of the opinion offered. After
referring to the “old hunter” in Rice at 820, Bryant, referring to
p. 25 of Mohan, states:

The proponent of the expert evidence must satisfy the trial
judge that the proffered expert witness acquired special or peculiar knowledge
through study or experience in respect of the subject matter of the opinion.

[Emphasis added.]

[19]        
In this case, the subject matter of Mr. Andruschak’s Report is the
plaintiff’s future earning capacity. However, Mr. Andruschak’s experience
is properly viewed as concerning the earning possibilities for RVPs at
Primerica generally; his experience is not in preparing objective reports on how
such earning possibilities might manifest themselves in specific individual
into the future.

[20]        
Thus, while having firsthand knowledge and experience in RVPs’ earning
potential at Primerica, based on their actual earnings, which is information
that may be useful to the Court, Mr. Andruschak does not offer particular
expertise in the subject matter of the Report, purporting to prepare an
objective estimate of future income and thus income loss for a specific person.
As such, on the basis that Mr. Andruschak does not qualify as an expert,
the Report cannot be admitted on that basis.

[21]        
Given my findings regarding Mr. Andruschak’s qualifications as an
expert, it is unnecessary for me to canvass the defendant’s arguments regarding
the Report’s formal compliance with the Rules. As I have said, however, much of
the information in the report is potentially relevant and germane. I will leave
it to counsel to review and discuss that matter amongst themselves. If required
I will make further rulings on the proposed evidence. It may be that Mr. Andruschak’s
evidence would be better presented simply viva voce with the assistance
of a few graphs or charts.

The Honourable Mr. Justice
J.E.D. Savage