No one will deny that the law should in some way effectively use expert knowledge wherever it will aid in settling disputes. The only question is as to how it can do so best.
Courts have long acknowledged the value of expert opinion evidence in assisting the trier of fact by furnishing it with scientific and technical information that is outside the experience and knowledge of an ordinary person. It has been debated equally as long, however, how expert testimony should be utilized without confusing, or worse, usurping the role of, the trier of fact; prejudicing the parties to the litigation; or substantially increasing litigation costs.
The very same concerns led to the recent redrafting of the Supreme Court Rules of Court. In its 2006 report entitled “Effective and Affordable Civil Justice”, the Civil Justice Reform Working Group (the “Working Group”) made recommendations regarding expert evidence, with a view of reducing adversarial bias and the polarization of experts, the complexity of litigation, and litigation costs.
Many of these recommendations were incorporated into the new Supreme Court Civil Rules (the “Rules”), as follows:
(i) Where a case plan order (“CPO”) is made, unless the court orders otherwise, expert evidence must be provided for in the CPO or it cannot be used at trial: Rule 11-1(2);
(ii) Expert witnesses have a duty to assist the court and must not advocate for either party: Rules 11-2(1) and (2);
(iii) The Rules provide for the use of joint experts, both under a CPO or voluntarily. The parties must settle on the identity, issues, facts, assumptions, questions and fees before the expert is appointed. The court can settle terms of disagreement: Rules 11-3(1), (3) and (5);
(iv) Where a joint expert is appointed to give an opinion on an issue, unless the court otherwise orders, only he or she is allowed to give expert opinion evidence on that issue: Rule 11-3(7);
(v) The Rules set out the requirements for an expert’s report. The report must include, among other things, the instructions provided by counsel, the factual assumptions on which the opinion is based, a description of any research the expert conducted that led to the opinion, and a list of every document the expert relied on in forming the opinion: Rule 11-6(1);
(vi) The times for service and notice of the expert reports have been extended. Further, the times expire on the scheduled trial date, not the date when the expert is expected to testify. The initial expert report must be served on every party of record 84 days before the trial. A responding report must be served 42 days before the trial: Rules 11-6(3) and (4);
(vii) If an expert’s report “changes in a material way”, the expert must, as soon as practicable, prepare a supplementary report, which must include a description of the change and the reasoning behind it: Rule 11-6(6);
(viii) Upon request, a party must promptly provide the requesting party with the portions of the expert’s file that relate to the facts that the expert relied upon in coming to an opinion: Rule 11-6(8);
(ix) If a party objects to an expert report’s admissibility, that party must serve notice on the other party on the earlier of the date of the trial management conference or 21 days before the scheduled trial date: Rule 11-6(10);
(x) The opposing party can require the expert to attend trial for cross-examination by making a request within 21 days after service of the report. If no such request is made, the report, if admissible, may be tendered as evidence without the expert attending trial: Rules 11-7(2) and (3);
(xi) Examination in chief is restricted to clarifying terminology or making the report more understandable: Rule 11-7(5);
(xii) At a case planning conference, the court has broad discretion to make various orders, on its own motion, including that experts confer with one another to help focus the technical issues in dispute: Rule 5-3(1)(k); and
(xiii) The court has virtually unfettered discretion to change or dispense with any aspect of Part 11: Rule 11-7(6).
Expert evidence is particularly relevant to personal injury actions, as these types of lawsuits are heavily dependent on such evidence. As discussed in the Osborne Report, it is frequently necessary in those actions to call more than three medical experts – for example, orthopaedic surgeons, physiatrists, psychiatrists, and so on – to opine on the plaintiff’s physical and psychological injuries and limitations resulting from the accident. In addition, actuarial evidence and vocational consulting expert evidence is often tendered to support the plaintiff’s claim for loss of future income earning capacity. And finally, where liability is at issue, parties will call accident reconstruction engineers and various other experts to reconstruct the accident to demonstrate that fault lies with the other side.
Accordingly, changes in the Rules affect the way counsel practice and instruct experts. This paper will briefly explore several of these changes and provide some commentary on how they will affect the use of medical evidence in personal injury cases.
A. Case Planning Conferences and CPOs – Rule 5-3(1)(k)
A significant change brought in by the new Rules is the rule that where a case planning conference is held, expert opinion evidence must not be tendered at trial unless it is provided for in the CPO. As a result of this Rule, counsel must turn their minds to expert evidence required at trial earlier than under the former Rules of Court.
Furthermore, while parties under the former Rules of Court could file as many expert reports as they thought necessary, this is not the case under the new Rules. The Rules, whose underlying objectives are to secure a just, speedy and inexpensive determination of proceedings on their merits in a proportional manner, invite the judiciary to scrutinize expert witness evidence: Rules 5-3(1)(k), (v). This shift in the judiciary’s function, from passive arbiter to active case manager, was confirmed by Willcock J. (as he then was) in Gill v. A & P Gruit Growers Ltd., 2011 BCSC 1421 at para. 21:
 The enumeration of orders that may be made at a case planning conference is exhaustive but Rule 5-3(1)(k) confers a broad discretion on the case planning judge to make orders respecting expert witnesses and Rule 5-3(1)(v) confers a broad discretion to make any order that advances the objectives of the Rules. … The Rules contemplate active judicial management of litigation and, in particular, judicial regulation of the role of expert witnesses at trial. The Rules require that case planning and trial management be conducted with an eye to efficiency and the proportionality of the expense of the process to the value, importance and complexity of the matters in issue. …
Thus, if counsel do not wish for the judiciary to take a more direct role in directing an action, as is permitted under the Rules, where possible they should work together to ensure that the action is proceeding expeditiously.
Counsel may also request a case planning conference at any time after the pleading period has expired. Case planning conferences are often set by counsel where there is a perception opposing counsel is not complying with time limits or other provisions set out in the Rules. In such circumstances, those parties who are prepared to move ahead with their case may utilize case planning conferences to force the other side’s hand.
Either way, earlier preparation and diligence is required under the new Rules.
B. Duty of Expert – Rule 11-2(1)
The new Rules codify common law and expressly provide that expert witnesses owe a duty to the court and not to the parties that retain them, which duty experts must acknowledge in their reports. This was introduced in order to address the increasingly adversarial nature of expert testimony. Counsel and experts alike should take notice and ensure that expert reports do not cross the line into advocacy, lest they be rejected as prejudicial and likely to distort the fact-finding function of the trier of fact.
The principles under Rule 11-2(1) were applied in Warkentin v. Riggs, 2010 BCSC 1706, a motor vehicle accident case. The defendant objected to the admissibility of a medical expert’s report on the basis that he was advocating for the plaintiff. The court agreed. The court held that the report was not neutral or impartial and did not provide a balanced discussion of fibromyalgia and its possible application to the plaintiff’s case. Rather, it was “biased, argumentative and contrary to the requirements for the admissibility of an expert report”: para. 81.
The court has also rejected a report for using bolded and italicized font to highlight words and phrases which benefited the plaintiff’s claim and supported his diagnosis: Turpin v. Manufacturers Life Insurance Company, 2011 BCSC 1159 at paras. 29-34, citing Warkentin. The court noted that this use of emphasis should not be encouraged. If the expert needs to highlight an important premise, he or she should simply state as much rather than leave it to “unexplained emphasis in the body of the report”: para. 33.
In view of these cases, it bears repeating that counsel should ensure that their experts both understand their role and stay safely within bounds.
C. Joint and Court-Appointed Experts – Rules 11-3,5-3(1)(k) and 11-5
Rule 11-3 provides a fairly detailed procedure for appointing a joint expert. While it was thought that such a rule would lead to costs savings, reviews have been mixed in other jurisdictions that implemented the single-expert model: Osborne Report at pp. 72-73. Nevertheless, Rule 11-3 places a greater emphasis on the appointment of joint experts and invites wider application of that process: Benedetti v. Breker, 2011 BCSC 464 at para. 11.
Whether this Rule should be utilized in any particular case will necessarily depend on the specific circumstances. For example, there obviously will be little impetus for the parties to jointly retain an expert where there is no agreement on the factual foundation on which the expert’s report will be based.
Such a decision to retain a joint expert is ultimately out of the parties’ control, however, as a case planning judge can appoint a joint expert over the objections of one of the parties. Three cases have considered Rule 11-3 in such circumstances.
In Benedetti, a personal injury action,the court dismissed the plaintiff’s application for an order appointing as a joint psychiatric expert an expert previously chosen by the defendant. Although the application was not brought at a case planning conference, as required by Rule 11-3(1), the court concluded that it would be inappropriate to make the order in any event because it would deprive the defendant of unilateral access to the expert in circumstances where the defendant had previously notified the plaintiff of its choice of expert. In considering the goal of proportionality, the court concluded that it would have doubtful application in that case where the plaintiff already had five medical reports: para. 16.
Benedetti was considered in Leer and Four L. Industries v. Muskwa Valley Ventures Ltd., 2011 BCSC 930, where the defendant company was incorporated by five independent businessmen, including the plaintiff and the personal defendants. At some point, the plaintiff and the personal defendants had a serious falling out. The plaintiff brought a shareholder oppression claim, seeking an order that the defendant company purchase his shares at fair market value. At a case planning conference, he sought an order that a joint business valuator be appointed. The personal defendants vigorously opposed the idea of a joint expert. They argued that there were substantial controverted facts on the oppression issue; and as a valuation would be necessary only if the plaintiff was successful in his oppression claim, it was premature to require a joint expert. They also asserted that it would be a “shocking proposition” that they would be required to contribute to the cost of an expert required only by the plaintiffs. The court rejected these submissions, on several grounds: (i) it was not premature to require a joint expert on valuation, as all issues in the pleadings are before the court for the purposes of trial; (ii) it would be proportionate to have the defendants pay for a report required by the plaintiffs, as it would avoid duplication of the costs of obtaining an expert report in circumstances where the claim likely was modest (and where, it appears, the court was unconcerned about varying findings); and (iii) a valuation would provide the parties with the information required to settle the longstanding dispute.
Most recently, in Hans v. Volvo Trucks North America Inc., 2012 BCSC 73, the court was asked to exercise its discretion to order that an engineering firm (“SMS”) be appointed as a joint expert. In that case, the plaintiffs crashed a truck manufactured by the defendant, Volvo Trucks North America Inc. According to the plaintiffs, the truck’s electrical systems failed, including the power steering and brakes. The defendant N. Yanke Transfer Ltd. had the truck towed to Winnipeg, where it had SMS inspect the truck and investigate the cause of the accident. Volvo was invited to attend the inspection, but the plaintiffs were not. SMS concluded that a loose battery terminal nut led to resistance heating, which ultimately led to the failure of several key vehicle systems, including anti‑lock brakes, electronic stability control, and power steering. The truck was repaired and the plaintiffs were advised to pick it up. They refused.
At the case planning conference, the plaintiffs applied to have SMS appointed as a joint expert. The court made that order, on the basis that the plaintiffs would otherwise be prejudiced, as only SMS was in a position to provide expert evidence of the cause of the accident, given that the truck had been repaired:
 In my view, [ordering a joint retainer] is a practical and proportionate way of proceeding in this case where it is impossible for the plaintiffs to obtain their own expert evidence about the cause of the accident. That is because when Yanke retained SMS to inspect the truck, it invited Volvo to attend but not the plaintiffs. The plaintiffs did not therefore have the opportunity to request their own expert to attend the inspection. The plaintiffs only learned of the existence of the SMS report when it was listed on Volvo’s list of documents. By that time, the truck had already been repaired. Thus, the only available evidence as to the cause of the accident will be the plaintiff’s oral evidence of what occurred … and the SMS report. A joint retainer is necessary to have SMS prepare a report that conforms with the Rules with respect to the admissibility of an experts report.
Several general propositions can be taken from these cases:
(i) counsel must be prepared by the time of the case planning conference to make any applications regarding expert evidence;
(ii) it is more likely a joint expert will be appointed where there is little reason to have two separate expert reports, such as where there is one correct answer (or little variance in the expert’s findings);
(iii) where a party has already instructed an expert on the issue in question and has provided notice to the other side of its intention to retain that expert, it may be unfair for the opposing party to ‘hijack’ that party’s expert by applying to have him or her appointed as a joint expert;
(iv) where it is impossible for one party to obtain its own expert evidence about a particular issue, however, the court will likely order that the opposing party’s expert is a joint expert, given the prejudice that would otherwise arise; and
(v) whether a party is applying to have an expert appointed as a joint expert or opposing such an application, the focus of counsel’s submissions should be on the proportionality of making such an order (i.e. if making the application, demonstrate why it is proportional in the circumstances, and vice versa when opposing).
Rule 11-5 allows the court to appoint its own experts. This is not new. The former Rules of Court allowed for court-appointed experts under Rule 32A. Courts tended to be conservative in exercising their power under that rule, however, to avoid disrupting the adversarial process: Shenzhen City Luohu Industrial Development Company v. Yao, 1999 CanLII 4085 (B.C.S.C.) at para. 24; Hiebert v. Hiebert, 2006 BCSC 231 at paras. 19-20 (Master).
D. Requirements of Reports – Rule 11-6(1)
A witness is entitled to give expert opinion evidence in an area only if he or she has specialized knowledge in that area. Procedurally, under Rule 11-6(1), the trial judge must rule on both the area of the witness’s expertise and the issues to which the expert’s opinion will be directed. That is, the witness must be properly qualified and formally accepted by the court as an expert in a specific area.
The information that must be in an expert’s report has been expanded on from the old Rules – although these changes are actually little more than a codification of the common law that developed around Rule 40-A. The expert must now provide his or her qualifications, work and educational experience in his or her area of expertise; the instructions provided to him or her by counsel; the nature of the opinion being sought and each issue in the matter to which the opinion relates; and the expert’s reasons for his or her opinion, including the factual assumptions on which the expert’s opinion is based, a description of any research conducted, and a list of every document relied on.
This Rule is not simply a matter of form. The purpose of the rule is to ensure fairness to both parties by providing the party on whom the report is served with adequate notice to enable them to effectively cross-examine the expert and to properly instruct their own expert if they choose to retain one: Jones v. Ma, 2010 BCSC 867 at para. 11; Mazur v. Lucas, 2010 BCCA 473 at para. 42. A failure to comply with this Rule has the potential to increase the time and expense of resolving litigation, as such failure leads to uncertainty regarding the expert’s qualifications and the purpose of the report tendered, and therefore may be contrary to the overall object of the Rules to determine proceedings in a just, speedy and inexpensive manner: Haughian v. Jiwa, 2011 BCSC 1632 at paras. 31-37. Thus, failure to meet any one of these requirements could cause a judge to reject an expert’s work.
For example, where it is revealed that the majority of the work in an expert report was conducted by a person or persons other than the report’s author, the report may be held inadmissible: see Jones v. Ma, supra.
Where a medical expert report is tendered in evidence, the author cannot simply refer to “a review of the clinical manifestations of [the medical disorder in question] and diagnosis of [that medical disorder]” and to “a review of the literature” relating to that medical disorder. In those circumstances, the expert has contravened Rule 11-6(1)(f)(iii): Turpin, supra, at paras. 25-28. It is the expert’s job to assist the court in understanding what materials the expert reviewed in coming to his or her opinion.
Moreover, counsel cannot rely on Rule 11-6(2) to overcome the onus to prove that the author of the report is a qualified expert. Rather, counsel must ensure that there is sufficient information in the report clearly identifying the qualifications of the proposed witness to state an opinion, or opinions, on a precisely defined area of expertise: Turpin at paras. 10-19.
Last, not only can an expert’s report be rejected if it does not meet the requirements under Rule 11-6(1), cost consequences may also flow from those breaches. In Fan v. Chana, 2011 BCCA 516 at para. 57, the Court upheld the trial judge’s decision to deny disbursements to the successful party. The trial judge held the expert report inadmissible because the expert had provided medical opinions outside of her expertise as a psychologist, in contravention of Rule 11-6(1). While the Court of Appeal stated that it was not unreasonable to obtain an opinion from that particular expert, it should have been obvious to counsel, at the time of obtaining the expert’s opinion, that it would not be admissible because the expert did not have the qualifications to provide opinions on the appellant’s medical treatment for pain. On that basis, the Court of Appeal held that incurring the expense for the report, at the time it was obtained, was not reasonable.
Counsel must not ignore, or treat as an afterthought, the actual qualifications of the expert and the process of qualifying the expert to give evidence at trial. In that regard, counsel should avoid the following pitfalls: (i) simply attaching an extensive curriculum vitae to a report, without highlighting the relevant experience and education; (ii) failing to elicit evidence of relevant experience or education during the process of qualifying the witness; and (iii) failing to ensure that the expert witness provides an opinion only within the area in which he or she is qualified and regarding the issue he or she has been asked to comment upon.
Overall, the expert and counsel’s duty is to satisfy the court that the witness has expertise in the subject area in which he or she is to be qualified in the case at hand. It cannot be understated, therefore, how important it is to highlight those qualifications and that experience most relevant to the opinion or opinions being presented.
E. Exchange of Reports – Rules 11-6(3) and 11-6(4)
Another significant change is with respect to the deadline for exchanging expert reports. Expert reports must now be exchanged at least 84 days before the scheduled trial date: Rule 11-6(3). The court has recently acknowledged that, on occasion, “there may be circumstances which might justify the ordering of an independent medical examination, otherwise than in support of the preparation of a responsive report”: Jackson v. Yusishen, 2013 BCSC 1522 at para. 32. However, this is reserved for “exceptional” circumstances where such a report would be required to “level the playing field”: Jackson at para. 35.
Responding expert reports must be served at least 42 days before the scheduled trial date: Rule 11-6(4). Rule 11-6(4) was enacted to fill a lacuna in the Rules. Rule 40A permitted parties to call expert evidence in reply without notice at trial, but in order for such evidence to be admitted, it had to be truly responsive to the expert evidence of a witness called by the opposing party. Rule 11-6(4) provides that notice must be given of responsive expert evidence, although the court retains discretion to admit expert evidence of which sufficient notice has not been given: Wright v. Brauer, 2010 BCSC 1282 at para. 16.
The court reviewed the bounds of its discretion in Wright, a motor vehicle accident case. The defendants brought an application under Rule 7-6(1) to have the plaintiff attend an IME by an orthopaedic surgeon. The deadline for serving a responsive report under Rule 11-6(1) was nearly a month away. The defendants argued that Rule 11-6(4) or Rule 7-6(4), or both, entitled them to require the plaintiff to attend the IME. The court rejected this argument, holding that the defendants were required to establish a basis of necessity for the examination to properly respond to the expert witness’s report that was served under Rule 11-6(3) by the other party.
In Luedecke v. Hillman, 2010 BCSC 1538 at para. 54, the court clarified that it is not simply a matter of demonstrating a need to respond to the subject matter of the plaintiff’s case. It must be “purely responsive” to the medical evidence which the other party has called, although responsive opinions are not limited to “a critical analysis of the methodology of the opposing expert”: Luedecke at paras. 49, 52. Accordingly, the proposed responding expert must provide sworn evidence setting out the basis for the examination sought. See also Jackson at paras. 15-26; Hamilton v. Demandre, 2010 BCSC 1914 at paras. 25-40.
That said, it is insufficient for the proposed responding expert to depose merely that he or she cannot give a proper rebuttal opinion report to assist the court without examining the plaintiff. The proposed responding expert must also state what there is about the other report that would lead him or her to think that he or she needs to examine the opposing litigant: Becker v. Zetzos (May 2, 2013), Vancouver Registry M121679 (Master).
Finally, most recently, in Jackson, Barrow J. held that other factors, aside from the evidentiary threshold, influence the discretion the court has to order an IME for purposes of preparing a responsive expert report:
(i) the court is more likely to grant the order under Rule 9-7(1) where the responsive report would play a significant role in “levelling the playing field” (para. 27); and
(ii) the court is less likely to grant that order where the court considers that it was likely that the counsel seeking a responsive report anticipated a report of the sort served by the other side, and to which that counsel wished to respond, supported by an IME (para. 28).
As above, these Rules require counsel to prepare for trial earlier than under the former Rules of Court. This is particularly true for defendants in personal injury cases. As Barrow J. states in Jackson, while it may be common practice for plaintiffs to serve an expert report at or near the deadline, making it “too late” for defendants to prepare a fresh report from their own experts, this is not something courts will take into account when considering whether to grant an order under Rule 9-7(1). Defendants cannot simply assume that the plaintiffs are not serving such reports until the deadline is reached: Jackson at para. 33. They must be proactive, particularly where an issue that may require an expert’s opinion (e.g. the plaintiff’s functional capacity) was raised at the beginning of the litigation.
F. Production of Documents – Rule 11-6(8)
Opposing parties are entitled to pre-trial disclosure of an expert’s working file and materials. A party who serves a report must promptly serve on a requesting party: (i) any written statement of facts on which the expert’s opinion is based; (ii) a record of any independent observations made by the expert; (iii) any data compiled by the expert; and (iv) the results of any tests or inspections conducted by the expert, if the expert has relied on the results. In addition, if requested, a party must make available for review and copying the contents of an expert’s file 14 days before the scheduled trial date.
These disclosure obligations are an improvement on the old Rule, for two reasons.
First, under the old Rule, opposing counsel was not entitled to review the expert’s working files and materials until the expert took the stand, which could lead to unnecessary delay and surprise at trial.
Second, the requirement for an expert to share his or her file with the opposing party was governed by Vancouver Community College v. Phillips Barratt (1988), 26 B.C.L.R. (2d) 296, where Finch J. (as he then was) held that an expert lost privilege when they testified in court, making the entire contents of their file available to the other side. Under the new Rule, however, the Working Group struck a balance and resolved the grey area regarding solicitor-client privilege: while parties have a right to disclosure of the expert’s file, such disclosure is limited to the expert’s opinion and the facts upon which it is based. In that regard, the court has recently held that the expert’s notes made during trial, which are obviously made after the expert has formed his or her opinion, are not producible under Rule 11-6(8): First Majestic Silver Corp. v. Davila, 2012 BCSC 1250 at paras. 5-11.
G. Objections to Reports – Rule 11-6(10)
If a party objects to the admissibility of an expert’s report, that party can require the expert to attend trial for cross-examination by making a request within 21 days after service of the report.
Continuing with the running theme above, counsel must turn their minds to the expert’s report and any objections they may have quite expeditiously after receiving it. The window is short, and once it closes, opening it back up again may prove fruitless. Again, preparation and diligence are key.
H. Court May Dispense with Any Requirements under Part 11 – Rule 11-7(6)
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, as follows: (a) where there are after-acquired facts that could not have been discovered through due diligence; (b) where the non-compliance is unlikely to cause prejudice because the opposing party is either unable to prepare for cross-examination or will be deprived of a reasonable opportunity to tender evidence in response; or (c) where “the interests of justice” require waiver.
Nevertheless, if a party seeks to introduce expert evidence in contravention of Part 11 when there was ample opportunity to do so, the report will likely not be admitted. Accordingly, counsel should take care not to rely too heavily on the court’s discretion to dodge the requirements of Part 11, as the trend in the courts is to require stricter adherence to the Rules.
The court’s decision in Neyman v. Wouterse, 2013 BCSC 95 provides a recent example of the court’s reluctance to waive the requirements under Part 11 – particularly in the face of defence counsel’s dilatory conduct throughout the litigation. In that case, another one involving a motor vehicle accident, the defendant applied for an order permitting him to tender into evidence an expert report that was delivered to plaintiff’s counsel some 27 days before the trial started. There was no issue that the report was a responding report under Rule 11-6(4). The parties also agreed that Rule 11-7(6)(a) did not apply to the facts of the case. The issue, then, was whether the court should exercise its discretion under Rule 11-7(6)(b) or Rule 11-7(6)(c) and admit the report into evidence.
The defendant argued that it would be “severely prejudiced” if the report was not admitted into evidence because it was the only medical evidence available to tender into evidence. Further, the defendant stated that the late delivery of the report was the result of inadvertence, namely the oversight of in-house counsel before conduct of the defence was assigned to its trial counsel.
The plaintiff took the position that she would be egregiously prejudiced by the late admission of the report into evidence. Also, the plaintiff submitted that it was not a case of mere inadvertence on the part of the defendant; rather, “counsel for the plaintiff painted a picture of a defendant who has been dilatory in conducting his defence throughout this proceeding”: para. 17.
In reviewing the applicable legal principles, the court noted that it was mindful of the underlying purpose of the Rules regarding expert reports: that they allow “considered review of the expert opinions, the obtaining of important advice, and possible response reports”: citing Perry v. Vargas, 2012 BCSC 1537 at para. 19.
The court reviewed, in depth, the defence’s conduct in the face of the plaintiff’s medical claims, which claims defence was aware of from the outset and “on an ongoing basis throughout this proceeding”: see paras. 18-21. The court concluded that it was satisfied that “the defendant has failed to avail itself of meaningful interlocutory steps to defend itself throughout this proceeding” and that there was “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”: para. 22.
Taking into consideration all the facts, the court refused to exercise its discretion to admit the expert report, even though it accepted that the defendant would be prejudiced by exclusion. It first dealt with subrule (b) as follows:
(i) The plaintiff would be prejudiced if the expert report was admitted because plaintiff’s counsel would require significantly more time with the plaintiff’s expert witness to determine whether: (a) further evidence, including additional reports, would be required to respond; (b) additional questions in chief should have been put to the two medical expert witnesses who had already testified as part of the plaintiff’s case; and (c) plaintiff counsel’s chief examination of his client’s remaining experts would need to be altered, and if so, in what way.
(ii) Plaintiff’s counsel may well have approached the preparation and prosecution of his client’s case quite differently if he had known that the report was going to be admitted.
(iii) The defendant would not be prejudiced by any adjournment of the trial, on the basis that the plaintiff could tailor her evidence in future after having heard cross-examination of two of her experts, as there was no evidence that she was feigning pain.
As for subrule (c), the court held that there must be some “compelling analysis” why the interests of justice require it to exercise its discretion to allow the “extraordinary step” of abrogating the requirements of the Rules. In the court’s view, the defendant had provided no reason whatsoever. Finally, the court held that the circumstances, particularly in light of the defendant’s dilatory conduct throughout the proceeding, were not compelling enough to get the court to exercise its discretion to admit the report into evidence.
This case provides a fairly stark example of where dilatory conduct on the part of counsel will lead: the exclusion of highly important, if not key, expert medical evidence.
Expert evidence lies is crucial to most personal injury actions. As such, it is imperative that counsel know the relevant Rules and how to utilize them to advance their client’s case as effectively as possible.
The new Rules regarding expert witnesses were implemented, in part, to prevent “overuse” of experts in the hopes of reducing the costs and complexity of litigation. As such, the court has been granted a more proactive role in regulating expert evidence tendered by parties, including eliminating superfluous expert witness opinions. It appears that in exercising this new role, the court may not forgive dilatory conduct or mistakes that, in the circumstances, should have been avoided through due diligence on counsel’s part, as hastily as it did in the past.
In that regard, upon reviewing the above case law, a common thread clearly runs through the fabric of Rule 11 – counsel who choose to approach their cases without any sense of timeliness or regard to the various requirements under the Rules are playing with fire and are likely to get burned. Effective counsel, on the other hand, will be proactive in retaining those experts required in the circumstances, having regard to the overarching goal of proportionality. While this necessarily takes active thought, planning, and diligence to ensure that the Rules’ requirements are met and that the evidence being tendered is defensible in light of the objectives of the Rules, this is what is required of counsel who seek to effectively use expert knowledge to aid the court in settling disputes.