IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140512

Docket: M085239

Registry:
Vancouver

Between:

Jason Walker

Plaintiff

And

John Doe and

Insurance
Corporation of British Columbia

Defendants

Before: The Honourable Mr. Justice
Butler

Reasons for Judgment

Introduction

[1]            
The defendant, the Insurance Corporation of British Columbia (“ICBC”)
brings this application to strike out statements made in three letters by
counsel for the plaintiff which are directed at three expert witnesses whose
reports are relied on by the defendant. The letters from counsel were delivered
in accordance with R.11-6 (10) of the Supreme Court Civil Rules, BC Reg.
168/2009 [“Rules”], and serve as the plaintiff’s notice of objection to
the admissibility of each of the expert’s evidence. The language in the three
letters in question is identical except for the expert’s name. The letters set
out in very general terms – which could be described as “boilerplate” – the
reasons why the plaintiff says the reports are inadmissible. The statement to
which the defendant objects in each of the letters reads as follows:

6.         We shall seek
sanctions personally against [expert’s name], including but not limited to
Special Costs.

[2]            
Following the hearing of the application I granted the order sought
without prejudice to the plaintiff’s right to deliver a revised notice
indicating an intention to seek special costs against the experts personally. I
ordered that any such revised notices must be delivered in seven days and
should provide sufficient particulars such that the experts will know why
special costs or other sanctions are being sought against them personally. I
indicated to counsel that I would provide brief reasons for my ruling in a
timely way so the reasons would be available the trial commences.

Background

[3]            
This application arises out of a hotly contested personal injury action.
The plaintiff suffered a serious injury to his left foot which he says was
suffered in an accident caused by an unidentified motorist on August 7, 2007.
ICBC denies that the injury occurred in the motor vehicle accident as alleged
by the plaintiff. The case proceeded to a three week trial before a jury on
April 10, 2012. Following submissions to the jury Voith J. declared a mistrial
based on the unfairly prejudicial statements made by plaintiff’s counsel. He
found that counsel’s conduct was “willful and obdurate” and that it was
deserving of rebuke and sanction: Walker v. John Doe, 2014 BCSC 294 at
para. 56. For the purpose of this application I note that one of the bases
for the declaration of a mistrial was the “inappropriate and unfair” attacks
made by plaintiff’s counsel on one of the defendant’s experts.

[4]            
The case is again set to proceed to trial before a jury commencing on June
9, 2014. The letters in question regarding the defendant’s expert witnesses
were recently delivered by plaintiff’s counsel. I am advised that the issue as
to admissibility of the three reports in question is to be decided on the first
day of trial in the absence of the jury.

Position of the Defendant

[5]            
The defendant says that R. 9-5(1) authorizes the court to strike out or
amend the whole or any part of “a pleading, petition or other document”. It
says that the letter required by R. 11-6(10) is a document that falls within
this Rule, and that the statements should be struck based on the provisions of
subsections (b), (c) or (d) of R. 9-5(1). The reason the statements are
unnecessary, vexatious or otherwise an abuse of process is that they are
intended to intimidate expert witnesses and thus amount to an interference with
the administration of justice. The defendant submits there are few exceptions
to the principle of witness immunity, none of which could be relevant here. The
defendant says that the attempt to intimidate the expert witnesses is
particularly offensive given the steps taken by plaintiff’s counsel in the
first trial. The defendant also says there is no reason for the plaintiff to
raise sanctions or special costs as a threat against the experts as it has a
valid remedy available: it can, and indeed has, objected to admissibility of
the reports. If the reports are ruled inadmissible, no harm is done, and if
they are admissible, there is no basis for the claim for special costs.

Position of the Plaintiff

[6]            
The plaintiff says the court has no jurisdiction to strike the
statements in correspondence and that it would potentially open a floodgate of
applications if the court should embark on this course. Further, he says that
experts often act as advocates even when they have certified that their report
was made in conformity with the duty set out in R. 11-2. He also says that the
letter sent by counsel did not intend to intimidate the expert witnesses, but
simply to remind them of the duty they owe to the court as expert witnesses and
that there could be consequences if they breach that duty. He says a reminder
of the duty owed by an expert to the court cannot be regarded as falling within
any of the subsections of R. 9-5(1).

Analysis

[7]            
Letters sent by counsel to provide notice of objection to the
admissibility of an expert report are required to be served pursuant to R.
11-6(10). The notice must set out “any objection to the admissibility of the
expert’s evidence that the party receiving the report … intends to raise at
trial.” The notice required by the Rule is a document mandated by the Rules
in which a party must set out their position for trial.

[8]            
Rule 9-5(1) is not limited to pleadings but also applies to petitions
and “other documents”. Document is defined in R. 1-1(1) in broad terms. There
is no doubt the notice required under R. 11-6(10) is a document pursuant to
that definition. However, the word must be interpreted ejusdem generis
in the context of the phrase, “pleading, petition or other document”. Applying
that aid to interpretation, I conclude that “other document” refers to
documents which are required by the Rules to formally set out a party’s
position, claim or defence. The notice under R. 11-6 (10) is such a document.

[9]            
Having arrived at that conclusion, the court does have jurisdiction to
strike out or amend a notice delivered under R. 11-6(10) if it offends the
provisions of R. 9-5 (1). The relevant parts of the Rule are:

(1)     At any stage of a proceeding, the court may order to
be struck out or amended the whole or any part of a pleading, petition or other
document on the ground that

(b)   it is unnecessary,
scandalous, frivolous or vexatious,

(c)   it may prejudice, embarrass
or delay the fair trial or hearing of the proceeding, or

(d)   it is otherwise an abuse of
the process of the court,

and the court may … order the
costs of the application to be paid as special costs.

[10]        
The essential question here is whether the notices delivered by the
plaintiff can be found to fall within any of the three subsections relied upon
by the defendant. I conclude that the statements contained in the letters
should be struck because they are unnecessary and an abuse of the process of
the court.

[11]        
I have arrived at this conclusion starting from the proposition that
special costs, or other punitive sanctions, are rarely awarded against
witnesses. In Lower v. Stasiuk, 2013 BCCA 389, the court reviewed the
law regarding the award of costs against non-parties and cited with approval
the summary of principles set out by Rowles J.A. at paras. 17 and 18 of Perez
v. Galambos, 2008 BCCA 382:

[17]      The court does have jurisdiction to order costs
against a non-party: Oasis Hotel Ltd. v. Zurich Insurance Co. (1981),
28 B.C.L.R. 230 (C.A.). However, an award of costs against a non-party is
unusual and exceptional, and should only be made in "special
circumstances": Anchorage Management Services Ltd. v. 465404 B.C. Inc.,
1999 BCCA 771, 72 B.C.L.R. (3d) 389, at para. 21.

[18]      "Special circumstances"
have been held to include situations where the non-party has engaged in
fraudulent conduct, an abuse of process, or gross misconduct in the
commencement and/or conduct of the litigation, or when the non-party is the
"real litigant": Anchorage.

[12]        
The plaintiff says that British Columbia courts may decide to apply the
law as it has developed in the United Kingdom where courts have held that
expert witnesses should not be immune from the sanction of costs for breaching
duties owed to the courts: Phillips v. Symes (No. 2), [2004] EWHC
2330 (Ch) and Jones v. Kaney, [2011] UKSC 13. The Court of Appeal in Lower
specifically left that decision to another day. However, that issue is not
before me on this application. What is important for the purpose of this
application are the following principles:

·      
Witness immunity is well established in British Columbia and is
important for the administration of justice: McDaniel v. McDaniel, 2008
BCSC 653, aff’d on this ground 2009 BCCA 53;

·      
Non-parties including expert witnesses are rarely ordered to pay
costs absent fraudulent conduct or gross misconduct in the conduct of
litigation; and

·      
While there is an argument that expert witnesses who breach a
duty to the court might be required to pay costs, there would have to be highly
unusual and exceptional circumstances before that could occur.

[13]        
In light of these principles, I consider there is no basis upon which
the plaintiff could or should in the circumstances of this case give formal
notice of a claim for special costs personally against the expert witnesses who
delivered reports for the defendants. The notice is unnecessary for the
following reasons:

a)    There is no
reason to “remind” the witness of his or her duty to the court. The duty is set
out in R. 11-2 and all three experts certified their awareness of the duty and
stated that their reports were prepared in conformity with that duty;

b)    Rule 11-6 (10)
does not contemplate that the party receiving an expert report should provide
notice to the expert of a claim for costs or sanctions. The only notice
required is of any objection to the admissibility of the report. The notice
under the Rule is not intended to be a document which initiates or provides
notice of such a claim;

c)     The scheme
set up in R. 11-6 was intended to allow parties to know prior to trial if there
is to be any challenge to the reports from their experts. When notice of a
challenge is delivered, the Rules provide the parties and the court the
opportunity to deal with objections prior to entry of the expert report as an
exhibit at trial. It is a sensible procedure. It means that an objectionable
report, or objectionable portions of a report, will not be entered as an
exhibit in the proceedings. The procedure eliminates any reason for claiming
costs against an expert prior to trial.

[14]        
In the circumstances of this case the notice to the expert of a claim
for special costs against them is also an abuse of the court’s process.
Assuming, for the sake of argument, that it might be possible to provide
particulars that could support a claim for special costs in a notice under R.
11-6(10), the plaintiff did not attempt to do so. No particulars that could
support a claim for special costs against a non-party were provided. In
argument plaintiff’s counsel did not attempt to refer to the expert reports to
establish a basis for any such claim. As there is no need to remind the experts
of their duty to the court, the only reason I can discern for the plaintiff’s
statement that he “shall” seek costs and other sanctions against the experts
personally would be to intimidate the experts, or discourage them from giving
evidence. Such actions are a misuse of the court’s procedure and must be
recognized as an abuse of the court’s process: Behn v. Moulton Contracting
Ltd., 2013 SCC 26 at paras. 39-41.

[15]        
In conclusion, expert witnesses play an important role in the litigation
process. When an expert is properly qualified within an area of expertise and
the expert’s opinion evidence, which is not otherwise excluded, meets the
essential criteria of relevance and necessity in assisting the trier of fact,
it can be admitted to assist the court: R. v. Mohan, [1994] 2 S.C.R. 9.
The Rules establish a process which provides adequate notice of expert
opinions and sets up a way to challenge admissibility. There is no need to
introduce into the process, by way of boilerplate language in notices under R.
11-6(10), threats of claims against experts for special costs. As I have
already noted, it is entirely unnecessary. Further, it has the potential to
frustrate the litigation process because it may discourage the participation of
expert witnesses. In addition, and contrary to the intent of the new Rules,
it would seem to place the expert in an adversarial position.

[16]        
In summary, I grant the order striking paragraph 6 from each of the R.
11-6(10) notices. As I indicated, this is without prejudice to the plaintiff’s
right to provide particulars of the claims for special costs and sanctions and
issue a further notice. While I doubt if such a notice can properly be made
under R. 11-6(10), the hearing of this application was somewhat abbreviated and
I did not have a full opportunity to consider the expert reports in context. I
understand that the admissibility of the reports will be considered by the
trial judge in detail on the first day of the trial. If the plaintiff wishes to
pursue a claim for special costs and other sanctions based on what is contained
in the expert reports, such a claim should be fully particularized and it can
be considered at the hearing to determine the admissibility of those reports.

“Butler
J.”