BC Injury Law and ICBC Claims Blog

Engineer Report Excluded Based on a “Where’s the Science?” Objection

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, excluding the expert opinion of an engineer based on a report lacking adequate scientific foundation.

In the recent case (Young v. ICBC) the Plaintiff alleged being involved in a sideswipe collision caused by an unidentified motorist.  ICBC argued no such collision occurred and instead the Plaintiff likely collided with a concrete barrier.  ICBC attempted to introduce into evidence an engineering report to back up their theory.  The court refused to introduce the report and in doing so provided the following reasons criticizing its scientific foundation:

[6]             The plaintiff’s objection was summed up by her counsel in the phrase “where is the science?”.  Mr. Antifaev submits that the report’s shortcomings go well beyond the question of weight, and go to the very basis upon which expert evidence is admissible.  It involved no scientific analysis, measurements or research, but consists primarily of argument and speculation.  Mr. Sdoutz did not visit the scene of the accident but relies on Google Maps.  He did not measure anything, did not see the car, and cites no accident information, statistics or testing.  The hallmarks of scientific analysis, Mr. Antifaev asserts, are missing.  Moreover, argues Mr. Antifaev, the report is riddled with what must be considered at least confirmation bias, simply feeding back what ICBC requested in an email sent by an adjuster on June 9, 2017. 

[18]         I conclude that this evidence does not meet the Mohan criteria and should be excluded on that basis.  But even if I were to conclude otherwise, I would consider it appropriate to exercise my discretion to exclude the report as part the gatekeeping function that I am obliged to exercise vigilantly (see, for instance, JP v British Columbia (Children and Family Development), 2017 BCCA 308 at paras 148-150). 

[19]         As Mr. Harris acknowledged, an expert can only deal with the data and information that is available.  Here, as noted above, there was no data and little information available to Mr. Sdoutz.  As a result, it was impossible to undertake the sort of forensic analysis one would expect in support an opinion of this nature.  I am therefore asked to accept something of a much lower level of reliability, based upon an inadequate scientific foundation.  That, in my view, renders it unsafe to admit the report.  The potential benefit is low and the risk of prejudice high.

[20]         I make no finding of bias on the part of Mr. Sdoutz, whose expert assistance I have found valuable in the past.  I nevertheless agree with Mr. Antifaev that it is concerning that the report appears to have responded not to the initial retainer letter of January 2015, but rather to the inappropriate email of June 2017, and that its conclusions mirror the concerns raised in that email.  This adds to the risk, but my conclusion does not turn on it.

[21]         It follows that Mr. Sdoutz’s report must be excluded. 

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