Admissibility of consulting reports as expert reports

In a recently released decision, Healey v Chung, 2015 BCCA 28, the Court of Appeal rejected the argument that consulting reports can be relied on as expert reports at trial. The case underscores the importance of compliance with Rules 11-2 and 11-6 for expert reports.

The appeal was from an award of damages for personal injuries sustained by the appellant, Mr. Healey, when, as a pedestrian, he was struck by a motor vehicle driven by the respondent, Ms. Chung. According to Mr. Healey, the accident was significant and caused him ongoing physical and psychological injuries. At trial, Mr. Justice Ball did not accept Mr. Healey’s view of the severity of the incident or the injuries he claimed.

Mr. Healey appealed the decision on a few bases, including a contention that the judge’s assessment of his credibility could not stand because the evidence was heavily influenced by two consulting reports that Mr. Healey said were wrongly admitted as expert reports. The documents were part of his family physician’s clinical file. He also complained of several factual matters and misapprehensions of evidence that will not be discussed here.

The reports at issue were consulting reports of two psychiatrists reporting to Mr. Healey’s family physician following a referral. At trial, counsel for Mr. Healey argued that the documents failed to set out the qualifications and educational experience of the doctors, the instructions provided to the doctors, the nature of the opinions sought, and most of the items required by Rule 11-6(1)(f).

Prior to trial, counsel for Ms. Chung advised Mr. Healey’s counsel that she intended to rely on these documents as expert reports. Counsel for Mr. Healey did not provide notice of his objection to them prior to trial.

At trial, counsel for Mr. Healey objected to the documents on the basis that they were not admissible opinion evidence. Mr. Justice Ball ruled that the consult letters were admissible as expert reports:

[8] In the case before me I am obliged in the circumstances to look at Rule 11-6, and particularly Sub-Rule 1, where the requirements for an expert’s report [are] discussed. The rules are not to be taken out of context. In the context of this case, it is very clear that Dr. Kuo, who was the treating physician of Mr. Healey, the plaintiff, was well aware of the location, area of expertise, address, name, qualifications of the persons to whom she sent Mr. Healey because these reports resulted from her sending Mr. Healey to both doctors.

[10] As a result, we have a document which in these circumstances the expert’s name, address, and area of expertise, with his qualifications, employment and educational experience are well known. The instructions are simple. The nature of the opinion sought and the issues are set out. The expert’s opinion is there on the issues and I am satisfied that the expert’s opinion contains the required factual underpinning set out in 11-6(1)(f).

On appeal, the court concluded that the reports did not satisfy the requirements of Rules 11-2 or 11-6. The Court of Appeal stated that the essential components of qualifications, education, experience, information and assumptions on which the opinion is based, the instructions given, and the research, must be included to justify receipt of the report as an exception to the hearsay rule” (para 20).

The appeal was allowed and a new trial ordered based on the error in admitting and placing weight on the consulting reports as expert reports and a separate misapprehension of evidence. With respect to the expert reports, the Court of Appeal noted that they were wrongly considered as expert evidence based on the following:

–      Neither consulting report contained a commitment to the standards of the Rules or evidenced the author’s awareness that the documents would be tendered as expert reports;

–      The consulting reports were simply in response to the family physician’s referrals of the appellant in the course of treatment and did not meet the requirements of expert opinion; and

–      Referral by a family doctor to a physician with specialized knowledge did not equate to knowledge by the patient of the specific information required in the expert report.

The court also confirmed that if the report(s) do not comply with Rules 11-2 and 11-6, there is no positive duty to make the 11-6(10) objection before the report is tendered at trial. Despite this latter ruling, it would be prudent to make the 11-6(10) especially where the opposing counsel makes it clear the reports are going to be tendered as expert reports.

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