IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20141027

Docket: M120943

Registry:
Vancouver

Between:

Karen Susan
Redmond

Plaintiff

And

Cole Krider and
Robert Krider

Defendants

Before:
The Honourable Madam Justice Maisonville

Oral Ruling
on Admissibility of Expert Opinion Evidence

I.                
Introduction

[1]            
Are the Supreme Court Civil Rules, B.C. Reg. 168/2009 [Rules],
a complete code with respect to the service and receipt of expert reports and
expert opinion, or does a common law rule relating to the admission of expert
opinion and the qualification of an expert in a trial still exist?

II.              
Background

[2]            
This application relates to the evidence of the plaintiff’s family
doctor.  The plaintiff’s action is against the defendants for damages sustained
in a motor vehicle accident that occurred on March 24, 2010.  The
plaintiff seeks to qualify her family doctor, Dr. John Mail, as an expert
capable of giving opinion evidence in the area of family medicine.

[3]            
In the course of the trial and within the timing and scope of R. 11‑6,
the defence called a rheumatologist, Dr. Kamran Shojania, to testify. 
Plaintiff’s counsel seeks to have Dr. Mail answer in reply to that
evidence.

[4]            
Plaintiff’s counsel had earlier indicated that Dr. Mail was going to be
called as a factual witness to speak to certain matters.  However, during the
course of the trial, plaintiff’s counsel decided not to call Dr. Mail. 
Subsequently, counsel for the defendant, Mr. Cependa, called Dr. Mail
as a factual witness.

[5]            
In the course of cross-examination, a voir dire was declared and
plaintiff’s counsel then applied to qualify Dr. Mail as an expert witness
able to give opinion evidence.  That evidence was accepted within the confines
of the voir dire, subject to an argument to be made with respect to
whether there existed a right at common law to call an expert witness where no
notice had been given, no report filed, no certification made and none of the
other safeguards followed.

[6]            
I advised the parties that, as Dr. Mail was required to attend to
give evidence on the next trial date, his attendance would not be required and
that I would be providing further reasons.  These are those reasons.

III.            
The Issue

[7]            
The issue before the Court is whether there exists at common law, outside
the confines of the Rules, a residual right to call an expert witness
without notice.

IV.           
Positions of the Parties

(a)           
Plaintiff’s Position

[8]            
Plaintiff’s counsel, Mr. Parsons, argues that the Court should
exercise its discretion to permit Dr. Mail to give opinion evidence in
response to Dr. Shojania’s opinion that the plaintiff currently has frozen
shoulder.  Counsel argues that this implied ability is left at common law based
on the findings of Justice Cullen, as he then was, in Luedecke v. Hillman,
2010 BCSC 1538.

(b)           
Defendants’ Position

[9]            
Counsel for the defendant noted that this evidence was well known to the
plaintiff.  Any ambiguities in Dr. Shojania’s report would have been known
to plaintiff’s counsel 84 days before trial, and a responsive report could
have been obtained, pursuant to the Rules, 42 days before trial,
which would have enabled defence counsel to properly prepare for the evidence.

[10]        
Counsel for the defence argues that there is no reason to exercise
discretion and allow the report, given that there was no impediment to
obtaining it in the usual course.  Further, defence counsel argues, the
safeguards have not been followed, and it would require unique and unusual
circumstances before a report is permitted without them.

V.             
Applicable Rules

[11]        
The applicable Rule
in this case is R. 1-2(2):

(2)  These Supreme Court Civil Rules govern every
proceeding in the Supreme Court unless

(a)
the proceeding is a family law case, in which case the Supreme Court Family
Rules apply, or

(b) an enactment otherwise
provides.

[12]        
Rule 1-2 expressly outlines: These Supreme Court Civil Rules govern
every proceeding in the Supreme Court.

[13]        
Rule 11-6 governs expert reports.  It provides inter alia:

Requirements
for report

(1)  An expert’s report that is to be tendered as
evidence at the trial must be signed by the expert, must include the
certification required under Rule 11-2(2) and must set out the following:

(a) the expert’s name,
address and area of expertise;

(b) the expert’s qualifications
and employment and educational experience in his or her area of expertise;

(c) the instructions provided
to the expert in relation to the proceeding;

(d) the nature of the opinion
being sought and the issues in the proceeding to which the opinion relates;

(e) the expert’s opinion
respecting those issues;

(f) the expert’s reasons for
his or her opinion, including

(i) a description of the
factual assumptions on which the opinion is based,

(ii) a description of any
research conducted by the expert that led him or her to form the opinion, and

(iii) a list of every document, if any, relied on by the
expert in forming the opinion.

[14]        
Pursuant to R. 11-6(3), the report must be served on every party on
record 84 days before the scheduled trial date “unless the court otherwise
orders”.  If there is a responding report, that is to be served, as per R. 11-6(4),
at least 42 days before the scheduled trial date “unless the court
otherwise orders”.

[15]        
Every export report must be accompanied by a certification as set out
under R. 11-2, which provides:

(1)  In giving an opinion to the court, an expert
appointed under this Part by one or more parties or by the court has a duty to
assist the court and is not to be an advocate for any party.

(2)  If an expert is appointed under this Part by one
or more parties or by the court, the expert must, in any report he or she
prepares under this Part, certify that he or she

(a) is aware of the duty
referred to in subrule (1),

(b) has made the report in
conformity with that duty, and

(c) will, if called on to
give oral or written testimony, give that testimony in conformity with that
duty.

[16]        
Accordingly, unless the court otherwise orders – consequently leaving the
court with discretion – the reports must be served within the timeframe.  There
are numerous reasons for this requirement, notably to enable the parties to
properly prepare for trial, to allow a party to obtain a responding report if
required, and to prepare for the just, orderly and fair presentation of
evidence before the court.

[17]        
Rule 11-7 only permits
expert opinion evidence at trial where it conforms with R. 11-6.  Rule 11-7(1)
states:

Reports must be prepared
and served in accordance with rules

(1)  Unless the court otherwise orders, opinion
evidence of an expert, other than an expert appointed by the court under Rule
11-5, must not be tendered at trial unless

(a) that evidence is
included in a report of that expert that has been prepared and served in
accordance with Rule 11-6, and

(b) any supplementary
reports required under Rule 11-5 (11) or 11-6 (5) or (6) have been prepared and
served in accordance with Rule 11-6 (5) to (7).

[18]        
The only reference in this rule to the situation that is before the
Court is in R. 11-7(6):

(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.

VI.           
Case Law

[19]        
In Perry v. Vargas, 2012 BCSC 1537, Savage J. held:

[14]      … even if the Late Report is not in any of its
aspects a supplementary report under R. 11-6(6), the question arises whether the
court should exercise its discretion under R. 11-7(6) with respect to the Late
Report.  Rule 11-7(6) provides as follows:

…

[18]      Rule 11-7(6)(b) focuses on whether there is
prejudice to the party against whom the evidence is sought to be tendered.  Of
course there are cases where reports are delivered a few days late where there
is no prejudice.  This is not such a case.  Delivering a new expert report without
any notice well outside of business hours on a Friday evening before a trial
commencing Monday morning places the opposing party in obvious difficulties.  In
my view there is some prejudice to the defendants given the untimely delivery
of the Late Report.

[19]      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.

…

[22]      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.

[20]        
Based on the lack of a compelling analysis explaining why the interests
of justice consideration should result in abrogating the requirements of the Rules
in the case before him, Savage J. declined to exercise his discretion set
out in R. 11‑7(6)(c).

[21]        
Counsel for the plaintiff argues that there is, in fact, a residual
discretion at common law to accept expert opinion tendered late.  In support of
this proposition, as noted, counsel for the plaintiff relies on paras. 52-53
of Cullen J.’s decision in Luedecke.  That case was an appeal from
the decision of a Master ordering an independent medical examination so that a
responsive report could be obtained respecting the plaintiff.  The Cullen J.
stated:

[52]      I thus conclude that what is referred to in Rule
11-6(4) is not akin to rebuttal evidence such as that called by a plaintiff in
response to a defendant’s case, with its consequent limitations.  Nor is it
akin to expert evidence that responds generally to the subject matter of the
plaintiff’s case.  Rather, it refers to evidence that is “purely responsive” to
the medical evidence which the other party has called.

[53]      As such, it has
inherent limitations, but not necessarily the same limitations that
Henderson J. imposed on the true rebuttal evidence he was dealing with in
[C.N. Railway v. H.M.T.Q. in Right of Canada, 2002 BCSC 1669].

[22]        
Plaintiff’s counsel argues that R. 11-6(4) impliedly leaves a common law
exception to the Court because it does not address R. 11-7.  Since Cullen J.
indicated there was impliedly an ability to call rebuttal evidence, accordingly
that must mean that there is, at common law, an ability to call an expert to
give opinion evidence where not in strict adherence to the Rules.

VII.          
Findings

[23]        
Although an able argument, I find that paras. 52-53 of Luedecke
cannot be read so as to support a common law exception to the requirement to
follow the Rules.  I find that Cullen J. did not address, nor
was that paragraph meant to address, any residual power to call an expert.  I find
that that power is fully codified in the Rules as set out in the rules
noted earlier in this decision.  To set aside those requirements would be to
completely defeat the purpose of the new Rules, which is to permit the
just and speedy determination on the merits of this case, or any case.  In Amini
v. Khania, 2014 BCSC 697, Burnyeat J. noted:

[21]      The very purpose of
Rule 11-6 is that all expert reports should be tendered in a way that
neither side can be ambushed or surprised at trial.

[24]        
In Wright v. Brauer, 2010 BCSC 1282 at para. 12, cited by
Cullen J. in Luedecke at para. 32, Savage J. noted that “Rule
11-6(4) was enacted to fill a lacuna in the Rules.”  This was required because
the former Rules permitted without notice expert evidence in reply if it
was truly responsive.  Rule 11-6(4) now clearly requires that notice.

[25]        
Accordingly, I find that the Rules are to be read as a
codification of the earlier common law respecting expert evidence, particularly
with respect to service and notice requirements relating to the expert
witness’s report, with the exceptions as set out in R. 11-7.

[26]        
In Jackson v. Yusishen, 2013 BCSC 1522, Barrow J. stated:

[15]      There are three rules engaged by this application. 
The Rules of Court distinguish between new or fresh expert reports and
responsive reports.  Rule 11-6(3) provides that, unless the court otherwise
orders, expert reports other than responsive reports must be served on all
parties of record at least 84 days before the scheduled trial date.

[16]      Rule 11-6(4) deals with
responsive reports and provides that such reports must be served on every party
of record at least 42 days before the trial date.

[27]        
Justice Barrow, in effect, was stating at that expert evidence that does
not fall into R. 11-6(4) is governed by R. 11-6(3), or another of the R.
11-6 sub-categories.

[28]        
I find that the principles reviewed by Savage J. in Perry
are the principles that should guide judicial discretion under R. 11-7(6). 
This test is not one that is easily met.  As noted by Savage J. at para. 19,
“delivering expert reports on the eve of trial is antithetical to the purposes
of the Rules regarding expert reports”, which are to ensure that the
parties have reasonable notice of expert opinions.

[29]        
In this case, the situation is an even more extreme situation than that
found in Perry, as we are not on the eve of trial but rather in the
middle of the trial.  I find that the Rules were meant to respond
to and to address the issue of expert opinion in these situations and further
to provide proper notice so that issues could be dealt with on their merits.  I do
not find that this is a situation requiring the exercise of discretion.

[30]        
Although it was argued that there was some ambiguity in Dr. Shojania’s
report, which would permit the admission of Dr. Mail’s expert opinion into
evidence, and argument was also advanced as to why no report compliant with the
Rules was made in rebuttal, I find that these points could have
been met by a careful review of the initial report and a rebuttal report.  Nor
is there an answer to the extreme prejudice faced by the defendants. 
Additionally, none of the safeguards that exist by way of certification pursuant
to the Rules were followed.

VIII.        
Conclusion

[31]        
In all of the circumstances, there being no parallel common law
exception to the admission of expert evidence, the Rules being a
complete code, I find that the opinion evidence of Dr. Mail will not
be admitted.

[32]        
Thank you, counsel.

_________
“Maisonville J.”__________
Maisonville, J.