Permitting Late Expert Evidence in the Interests of Justice a Remedy to be Used "Sparingly"
Rule 11-7(6) discusses the circumstances when the BC Supreme Court can allow expert evidence to be introduced at trial¬†which¬†does not otherwise comply with the Rules of Court. ¬†Reasons for judgement were released last week addressing this section. ¬†In short the Court held that allowing non-compliant expert¬†evidence¬†to be introduced in the interests of justice is a¬†discretion¬†that “must be exercised sparingly, with appropriate caution, and in a disciplined way“.
In the recent case (Perry v. Vargas) the Plaintiff was injured in a collision. ¬†On the last business day before trial the Plaintiff served a ‘supplementary report’ from her expert which bolstered the experts previous views,¬†clarified¬†statements made in the previous report, and lastly critiqued the defence medico-legal report.s
The Plaintiff argued the late report ought to be admitted as a ‘supplementary report’ pursuant to Rule 11-6(6) or in the alternative the Court should¬†exercise¬†its discretion to allow the non-compliant report in through Rule 11-7(6). ¬†Mr. Justice Savage rejected both of these arguments and in doing so provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†Rules 11-6(6) (a party‚Äôs own expert) and 11-6(5) (a jointly appointed expert) are cognate provisions designed to deal with circumstances where an expert‚Äôs opinion ‚Äúchanges in a material way‚ÄĚ. Rule 11-6(6) contains an election. In the case of one‚Äôs own expert, a party must determine whether it still seeks to rely on the expert report notwithstanding the material change. If it does so, the party must promptly serve a supplementary report.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Rule 11-6(6) was not intended to allow experts to add either fresh opinions or bolster reasons upon reviewing for the first time or further reviewing material under the guise of there being a material change in their opinion. To provide otherwise would surely defeat the purpose of the notice provisions contained in Rules 11-6(3) and 11-6(4) and the requirement of R. 11-7(1)…
¬†¬†¬†¬†¬†¬†¬†¬†¬†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.
¬†¬†¬†¬†¬†¬†¬†¬†¬†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,  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.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Rule 11-7(6)(c) allows the court to admit expert evidence in the interests of justice. It is a separate provision so it can apply in circumstances where the relaxing provisions of Rules 11-7(6)(a) and (b) are not met. Effectively, it provides that the court retains a residual discretion to dispense with the other requirements of R. 11.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Context here is all important. This is the second scheduled trial. There was a trial management conference with comprehensive trial briefs prepared by both counsel.
¬†¬†¬†¬†¬†¬†¬†¬†¬†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 ‚Äúinterests of justice‚ÄĚ 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.
¬†¬†¬†¬†¬†¬†¬†¬†¬†In the circumstances, the Late Report is not admissible.
Tags: bc injury law, Mr. Justice Savage, Perry v. Vargas, responding reports, Rule 11, Rule 11-6, Rule 11-6(6), Rule 11-7, Rule 11-7(6), Rule 11-7(6)(a), Rule 11-7(6)(b), Rule 11-7(6)(c), supplementary report