IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130118

Docket: M094365

Registry:
Vancouver

Between:

Angela Neyman

Plaintiff

And

Theodorus M.
Wouterse

Defendant

Before:
The Honourable Mr. Justice Walker

Oral Reasons for Judgment

Introduction

[1]            
On the third day of trial, which concerns an assessment of damages
suffered by the plaintiff in a motor vehicle accident that occurred on October
29, 2007, the defendant applied for an order permitting him to tender into
evidence the expert report of Dr. Paul Bishop dated December 3, 2012. The
application was brought because Dr. Bishop’s report was delivered to counsel
for the plaintiff on December 18, 2012, some 27 days prior to the commencement
of this trial and not in compliance with the time limits prescribed by the Supreme
Court Civil Rules (“Rules”). I gave the parties my ruling later in
the day, following submissions, advising them that reasons for judgment would
follow.

Basis of Application

[2]            
The defendant’s application is founded upon Rule 11-6(4), which is found
in Part 11 of the Rules.

[3]            
Rule 11-6(4) provides:

Unless the court otherwise orders, if a party intends
to tender an expert’s report at trial to respond to an expert witness whose
report is served under subrule (3), the party must serve on every party of
record, at least 42 days before the scheduled trial date,

(a)        the responding report,
and

(b)        notice
that the responding report is being served under this rule.

[Emphasis added]

[4]            
No issue has been taken with the characterization of Dr. Bishop’s
report: it responds to opinions expressed in reports prepared by several
experts retained on behalf of the plaintiff. As a result, Rule 11-6(4) is
engaged on the application.

[5]            
Rule 11-7(6) describes the circumstances in which an order may be made
to permit an expert to provide evidence at trial even where one or more
requirements contained in the Rules have not been met. The drafters of
that Rule made it clear that Rule 11-6(4) falls within the ambit of Rule
11-7(6):

At trial, the court may allow an expert to provide evidence,
on terms and conditions, if any, even though one or more of the requirements
of this Part have not been complied with, if

(a)        facts
have come to the knowledge of one or more of the parties and those facts could
not, with due diligence, have been learned in time to be included in a report
or supplementary report and served within the time required by this Part;

(b)        the non-compliance is
unlikely to cause prejudice

(i)         by
reason of an inability to prepare for cross-examination, or

(ii)        by
depriving the party against whom the evidence is tendered of a reasonable
opportunity to tender evidence in response, or

(c)        the interests of justice
require it.

[Emphasis added]

Savage J. took the same view of
those Rules in Perry v. Vargas, 2012 BCSC 1537 at para. 22.

[6]            
In addition, he determined, at para. 15, that the provisions of Rule
11-7(6) are disjunctive, “so only one of 11-7(6)(a), (b), or (c) need apply”.
He said, at paras. 18 – 22, that different considerations apply to each
sub-rule: sub-rule (a) focuses on the conduct of the party seeking to tender
the report; sub-rule (b) focuses on the prejudice to the party against whom the
evidence is sought to be tendered; and sub-rule (c) focuses on context, bearing
in mind that the discretion granted to courts must be exercised sparingly. At
para. 22, he wrote:

In my view the discretion
provided for in R. 11-7(6)(c) must be exercised sparingly, with appropriate
caution, and in a disciplined way given the express requirements contained in
Rules 11-6 and 11-7. That is, the “interests of justice” are not a reason to
simply excuse or ignore the requirements of the other Rules. There must be some
compelling analysis why the interests of justice require in a particular case
the extraordinary step of abrogating the other requirements of the Supreme
Court Civil Rules. None was provided.

[7]            
The parties agree that sub-rule (a) does not apply to the facts. Their
submissions focused on the prejudice that they would suffer if Dr. Bishop’s
report was excluded or admitted.

[8]            
In reaching my decision, I have also been mindful of the general remarks
made by Savage J. in Perry at para. 19 about the underlying purpose of
the Rules regarding expert reports:

More generally, delivering expert
reports on the eve of trial is antithetical to the purpose of the Rules
regarding expert reports, which seek to ensure the parties have reasonable
notice of expert opinions. Compliance with the Rules allows considered review
of the expert opinions, the obtaining of important advice, and possible
response reports. Under the former Rules, in Watchel v. Toby,
[1997] B.C.J. No. 3150, 33 M.V.R. (3d) 115, Kirkpatrick J., as she then was,
excluded in its entirety a late report delivered 12 days before trial where
there was insufficient time to obtain any opinion evidence to answer the
report.

[9]            
Perry and Commercial Electronics Ltd. v. Savics – Cavitt
Ruling, 2011 BCSC 162 are authority for the proposition that the general
principles enunciated in prior decisions of this Court under the former Rules
of Court may be instructive. As I see it, the foregoing remarks of Savage
J. echo the remarks of Burnyeat J. in Handley v. Punnett, 2003 BCSC 294 where
he said at para. 9:

The purpose of Rule 40A is clear. In Sterritt v. McLeod
(2000), 74 B.C.L.R. (3d) 371 (B.C.C.A.), Southin J.A. stated: “A principal
purpose of Rule 40A is to ensure that neither side will be taken by surprise by
expert evidence”. (at para. 33). In C.A. v. Critchley, [1996] B.C.J. (Q.L.)
No. 3055 (B.C.S.C.), Allan J. stated:

The very purpose of Rule 40A(2) is to prevent ambush and
surprise at trial, ensure fairness to the parties, and promote the orderly
progression of the trial (at para. 15).

Facts and Positions of the
Parties

[10]        
The defendant’s position on the application is that his defence will be “severely
prejudiced” if the report is not admitted into evidence because it is the only
medical evidence available to him to tender into evidence. The defendant
submits that the late delivery of the report was the result of inadvertence,
namely the oversight of in-house counsel prior to conduct of the defence being
assigned to its current trial counsel in late November 2012.

[11]        
According to the defendant, Dr. Bishop was retained at the “last minute”
– by someone other than its trial counsel – to conduct an independent medical
examination of the plaintiff on December 3, 2012. The defendant was of the
understanding that Dr. Bishop’s report, which was to be a responsive report,
would be produced the same day, so that in turn, it would be served on
plaintiff’s counsel that day as well. This would be 41 days prior to trial, which
is shy by one day of the time limit set out in the Rules for delivering responding
reports. Although counsel for the plaintiff initially objected to the plaintiff
attending upon Dr. Bishop as being too late in the day, the parties reached the
following agreement: (a) Dr. Bishop’s report would only respond to one of the
plaintiff’s experts, Dr. Caillier; (b) Dr. Bishop’s report would be delivered
on December 3, 2012; and (c) the plaintiff retained her right to object to the
admissibility of the report on any grounds available to her.

[12]        
Dr. Bishop’s report was not delivered to defence counsel until December
18, 2012. I was advised during submissions that there is disagreement whether
Dr. Bishop had in fact agreed to produce his report by December 3.

[13]        
The content of Dr. Bishop’s report goes well beyond responding to Dr. Caillier’s
opinions. Dr. Bishop takes issue with opinions expressed by some of the
plaintiff’s other medical experts as well. Defence counsel has suggested that
if the report is admitted, it should be redacted so that remarks addressed to
other expert opinions, which offend the agreement reached between the parties,
are removed.

[14]        
Dr. Bishop is licensed as a general medical practitioner in the province
of British Columbia. He also holds a Ph.D degree in pathology of the spine and is
a clinical associate professor at the faculty of medicine at the University of
British Columbia, a staff physician in the Combined Neurosurgical and
Orthopedic Spine Program at Vancouver General Hospital, and the deputy editor
of The Spine Journal (which I was told in submissions is a peer reviewed
publication).

[15]        
By way of summary, Dr. Bishop found no objective evidence of any spinal
nerve root deficit or of any other abnormality to support the plaintiff’s
claims of mechanical lower back and neck pain. He took issue with Dr. Caillier’s
diagnosis of chronic pain, in part because it was based upon findings using an
examining technique known as “palpation”. Dr. Bishop challenged the reliability
of the longstanding practice of medical doctors to incorporate palpation as
part of their investigation to diagnose and evaluate the nature and severity of
soft tissue injuries. He wrote:

It should be well understood that
physical examination findings based on palpation have been shown to have no
inter or intra examiner reliability in this clinical setting.

[16]        
He also challenged the medical propriety of other opinions expressed by
the plaintiff’s medical experts, including that she attend active
rehabilitation programs led by a kinesiologist. Dr. Bishop suggested the
possibility that the plaintiff may be suffering from a generalized anxiety
disorder or chronic myofascial pain disorder that may be “playing” a role in
“perpetuating” the plaintiff’s reported symptoms.

[17]        
The plaintiff objects to the admission of the report and the tendering
of any evidence by Dr. Bishop. The plaintiff’s position is that she would be
egregiously prejudiced by the late admission of the report into evidence. I was
also told during submissions that this is not a case of mere inadvertence on
the part of the defendant; instead, counsel for the plaintiff painted a picture
of a defendant who has been dilatory in conducting his defence throughout this
proceeding.

[18]        
I am satisfied that the defendant has been aware of the plaintiff’s
medical evidence on an ongoing basis throughout this proceeding. The case was
previously set to proceed to trial for five days in February 2013. The parties attended
two case planning conferences; the most recent was on February 13, 2012 before
Allan J. The trial was adjourned at that time because the trial estimate of
five days was insufficient. The trial was set over to commence approximately
one month earlier, on January 14, 2013, based on an estimate of seven days. The
plaintiff’s case planning conference brief disclosed to the defendant the names
and qualifications of all of its medical experts except for Dr. Caillier. Dr.
Caillier was retained at a later stage when plaintiff’s counsel found out that
one of the experts, Dr. Van Rijn, was retiring. Regardless, I am satisfied that
by February 13, 2012, the defendant was put on notice of the nature of the
medical professionals and other experts (e.g., those dealing with loss of
capacity and wage loss issues) and their areas of expertise that the plaintiff
intended to rely upon at trial. The plaintiff’s document production, which
included her clinical records, was also served on the defendant in January
2012.

[19]        
It turns out that the defendant took no steps to produce documents or
conduct an examination for discovery of the plaintiff despite the plaintiff’s
production of documents and her counsel’s efforts to arrange an examination for
discovery of the defendant. Nor have I been made aware of any efforts made by
or on behalf of the defendant to retain any expert in any field other than his
retainer of Dr. Bishop.

[20]        
The injuries claimed by the plaintiff to have been suffered in the motor
vehicle accident are described in her pleading. The Notice of Civil Claim was
never amended.

[21]        
The plaintiff’s expert reports were served on the defendant on October
19, 2012. More than a month later, on November 22, 2012, plaintiff’s counsel
was advised that the defendant intended to apply for an order requiring the
plaintiff to attend at an independent medical examination with Dr. Bishop.

[22]        
I am satisfied from the factual chronology that the defendant has failed
to avail itself of meaningful interlocutory steps to defend itself throughout
this proceeding. There is absolutely nothing in the plaintiff’s conduct or that
of her counsel that could be said to have caused or contributed to the
defendant’s omissions.

[23]        
Upon receiving Dr. Bishop’s report, plaintiff’s counsel immediately sent
it to his client’s experts for review. Unfortunately, the medical experts from
whom advice is necessary to properly consider the appropriate response to Dr.
Bishop’s report were away on vacation over the holiday period and were available
to confer with plaintiff’s counsel only last week, and even then only briefly
and by telephone. As a result, counsel for the plaintiff has been pouring
through medical textbooks to develop possible questions and approaches, based
on his own experience and without the assistance he would have had if the
report had been served on December 3, 2012.

Determination

[24]        
I accept that the defendant will be prejudiced by exclusion to some
extent, although at this point I am unable to determine by how much, because it
will not be able to lead the evidence of its only medical expert.

[25]        
On the other hand, I accept the submission of counsel for the plaintiff
that his client will suffer significant prejudice if Dr. Bishop’s report is
admitted. I accept counsel’s submission that in view of the nature and breadth
of the opinions expressed by Dr. Bishop, he requires significantly more time
with his expert witnesses to determine whether:

(a)      further
evidence, including additional reports, is required to respond to Dr. Bishop’s
report;

(b)      additional
questions in chief should have been put to the two medical expert witnesses who
have already testified as part of the plaintiff’s case; and

(c)      his
approach to his examination in chief of his client’s remaining experts (two of
whom were scheduled to testify in the afternoon of the day in which argument
was heard on this issue) needs to be altered, and if so, in what way.

[26]        
I am satisfied that plaintiff’s counsel has, through no fault of his own
or of his client, not been able to properly consult with his client’s medical
experts to determine the answers to those questions. It is also clear to me
that standing the trial down for a half day or day or two does not afford the
plaintiff and her counsel the opportunity to properly respond to Dr. Bishop’s
report, even if it was admitted on a redacted basis.

[27]        
In all, I am satisfied, from counsels’ submissions and from the nature
of the evidence given by the medical experts to date, that plaintiff’s counsel
may well have approached the preparation and prosecution of his client’s case
quite differently if he had known that Dr. Bishop’s report was to be admitted.

[28]        
I am also, respectfully, unable to agree with the submission of counsel
for the defendant that two questions put by plaintiff’s counsel to Dr. Van Rijn
concerning palpation and the value of an opinion from an occupational therapist
constitute an estoppel that works against the plaintiff’s position on this
application. I accept the submission of plaintiff’s counsel that he posited
those two questions, from his own experience and based in part on his review of
medical texts, as a precautionary step to try to protect his client’s interests
in the event that Dr. Bishop’s report was admitted without terms. In the
context of this case, I am satisfied that those two questions cannot stand as
an appropriate substitute for the plaintiff’s right to prosecute a properly
prepared case.

[29]        
I am also unable to agree with the defendant’s submission that any
adjournment of the trial would prejudice it because the plaintiff would have
the benefit of hearing cross-examination of two of her experts and, as a
result, she could tailor her evidence in future. There is no evidence that I was
made aware of at the time I gave my ruling to counsel that the plaintiff’s
current symptoms are the result of feigned pain behaviour. The issue is whether
her reports of pain and disability and tenderness on palpation are the result
of an emotional or psychological cause that is not recoverable because it is
too remote. As well, it must be kept in mind that the defendant has had the
benefit of knowing of the plaintiff’s approach to the case, and the various
disciplines in which expert evidence would be called, for about one year.

[30]        
In my view, the appropriate terms to avoid the prejudice to the
plaintiff arising from the admissibility of Dr. Bishop’s report and to ensure
trial fairness, such that the defendant is able to meet the requirements of
Rule 11-7(6)(b), are to adjourn the trial, reschedule it to start afresh, and
order costs thrown away to be paid by the defendant forthwith in any event of
the cause. I am also of the view that given Dr. Bishop’s opinion that the
plaintiff suffered an injury from the rear end collision, as a term of the
report being admitted, the defendant should make an advance payment to the
plaintiff in an amount to be agreed upon by the parties or determined by the
Court. An adjournment of the trial on those terms will permit the defendant to
defend the case with his expert medical evidence while avoiding significant prejudice
to the plaintiff.

[31]        
In reply submissions, however, counsel for the defendant advised that as
between admitting Dr. Bishop’s report on terms or excluding it and carrying on
with the trial, his client was firm that he wished the latter over the former.

[32]        
As a result of his position concerning terms, which in my respectful
view seeks to constrain the outcome of the application to the defendant’s
greatest advantage, I conclude that the defendant cannot meet the requirements
of Rule 11-7(6)(b).

[33]        
Lastly, turning to sub-rule (c), as Savage J. noted in Perry,
there must be some “compelling analysis” why the interests of justice require
the Court to exercise its discretion to allow the “extraordinary step” of
abrogating the requirements of the Rules. None was presented by the
defendant in submissions. Moreover, I find that the circumstances of this case,
particularly the dilatory conduct of the defendant, do not compel me to
exercise my discretion under sub-rule (c) to admit Dr. Bishop’s report into
evidence without an adjournment on terms. To otherwise admit Dr. Bishop’s
report would not be in the interests of justice.

[34]        
As a result, the defendant’s application is dismissed. Dr. Bishop’s
report will not be admitted into evidence.

[35]        
Finally, I wish to say that absolutely nothing in my remarks should be
taken as any form of criticism of the defendant’s trial counsel, whose conduct
in the litigation following his retainer has been proactive and beyond reproach
and whose submissions on the application were thorough and first class.

__________________________________

“The Honourable Mr. Justice Paul
Walker”