“Significant Prejudice” Bars Admission of Late Defence Rebuttal Report
As previously discussed, Rule 11-7(6) allows the BC Supreme Court to admit expert evidence that does not otherwise comply with the Rules of Court. Â Reasons for judgement were released last week addressing this discretionary power in cases where prejudiced is caused by the late report.
In last week’s case (Neyman v. Wouterse) the Plaintiff was injured in a 2007 collision. Â The Defendant proceeded to trial with only one expert report which was served well outside of the timelines required by the Rules of Court. Â The Defendant asked the Court to allow the report into evidence arguing that there would be severe prejudice if the report was excluded as “it is the only medical evidence available to him to tender into evidence“.
Mr. Justice Walker refused to allow the report in finding the Plaintiff would be prejudiced by depriving her adequate time to prepare for cross-examination. Â In so finding the Court provided the following reasons:
26]Â Â Â Â Â Â Â Â Â I am satisfied that plaintiffâ€™s counsel has, through no fault of his own or of his client, not been able to properly consult with his clientâ€™s medical experts to determine the answers to those questions. It is also clear to me that standing the trial down for a half day or day or two does not afford the plaintiff and her counsel the opportunity to properly respond to Dr. Bishopâ€™s report, even if it was admitted on a redacted basis.
Â Â Â Â Â Â Â Â Â In all, I am satisfied, from counselsâ€™ submissions and from the nature of the evidence given by the medical experts to date, that plaintiffâ€™s counsel may well have approached the preparation and prosecution of his clientâ€™s case quite differently if he had known that Dr. Bishopâ€™s report was to be admitted…
Â Â Â Â Â Â Â Â Â As a result of his position concerning terms, which in my respectful view seeks to constrain the outcome of the application to the defendantâ€™s greatest advantage, I conclude that the defendant cannot meet the requirements of Rule 11-7(6)(b).
Â Â Â Â Â Â Â Â Â Lastly, turning to sub-rule (c), as Savage J. noted inÂ Perry, there must be some â€ścompelling analysisâ€ť why the interests of justice require the Court to exercise its discretion to allow the â€śextraordinary stepâ€ť of abrogating the requirements of theÂ Rules. None was presented by the defendant in submissions. Moreover, I find that the circumstances of this case, particularly the dilatory conduct of the defendant, do not compel me to exercise my discretion under sub-rule (c) to admit Dr. Bishopâ€™s report into evidence without an adjournment on terms. To otherwise admit Dr. Bishopâ€™s report would not be in the interests of justice.
Â Â Â Â Â Â Â Â Â As a result, the defendantâ€™s application is dismissed. Dr. Bishopâ€™s report will not be admitted into evidence.