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BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Posts Tagged ‘Karpowicz v. Glessing’

Plaintiff Who Failed to “Re-Serve” Opposing Party’s Expert Report Cannot Rely On It

May 30th, 2018

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, finding that a party cannot rely on an opposing party’s expert evidence if they fail to ‘re-serve’ the report in the timelines set out in the BC Supreme Court Rules.

In today’s case (Karpowicz v. Glessing) the Plaintiff was involved in a collision and sued for damages.  The Defendant retained and served an expert report.  The Defendant eventually elected not to rely on the report and at trial the Plaintiff tried to use the report in support of his case.  The Court noted that the Plaintiff could not do so as he failed to serve the report as his own pursuant to the BC Supreme Court Rules.  In reaching this decision Madam Justice MacNaughton provided the following reasons:

[40]         On receipt of Ms. Beattie’s report, the plaintiff did not follow the usual practice of immediately re‑serving Ms. Beattie’s report on the defendant as a report on which he intended to rely. The plaintiff also did not attempt to re‑serve the report as a rebuttal report on which he intended to rely on the 42‑day deadline for doing so under Rule 11‑6(4).

[41]         In the process of compiling a joint book of experts’ reports, plaintiff’s counsel was advised by defence counsel that she no longer intended to call Ms. Beattie. In seeking to rely on the report, plaintiff’s counsel argued that as the report had been served, he was entitled to demand that Ms. Beattie be available for cross-examination under Rule 11‑7(3)(b) which states, in relevant part:

(3)  A party of record may demand that an expert whose report has been served on the parties of record under Rule 11-6 attend at the trial for cross-examination as follows:

(b) if the expert was appointed by a party under Rule 11-4 … any party of record who is adverse in interest to the party who appointed that expert may, within the demand period referred to in subrule (2) (a) of this rule, demand the attendance of the expert for cross-examination.

[42]         Plaintiff’s counsel did not refer me to any cases which supported his argument.

[43]         In my view, the plaintiff’s argument is just not supported by the rule. The rules with respect to tendering experts’ reports must be read as a whole, and it is the decision of a party to tender an expert’s evidence at trial which triggers the right of the other party or parties to demand the attendance of the expert for cross-examination.

[44]         For example, Rule 11‑6(1) sets out the formal requirements for a report that is to be tendered. Rule 11‑6(3) and (4) sets out the requirements for service and focus on a report that is to be tendered at trial. Rule 11‑6(6) deals with the requirements for a supplementary report in the event the expert changes his opinion with respect to an expert report that is to be tendered at trial. The focus is on tendered evidence.

[45]         The plaintiff has the burden of proving his case. The defendant is not required to prove anything and, as a result, may elect not to call any evidence and no adverse inference can be drawn from the failure to do so.

[46]         As an alternative argument, the plaintiff submits that I should exercise my discretion to waive the 84‑day deadline for delivery of Ms. Beattie’s report to allow the plaintiff to rely on her report and call her as his witness. He submits that the defendant will not be prejudiced as a result of the late delivery of Ms. Beattie’s report, as the defendants are aware of its content and are able to prepare to cross-examine her on short notice.

[47]         Rule 11‑7(6) describes when the requirements of Rule 11‑6 may be dispensed with:

(6) At trial, the court may allow an expert to provide [expert] evidence, on terms and conditions, if any, even though one or more of the requirements of this Part have not been complied with, if

(a) facts have come to the knowledge of one or more of the parties and those facts could not, with due diligence, have been learned in time to be included in a report or supplementary report and served within the time required by this Part,

(b) the non-compliance is unlikely to cause prejudice

(i) by reason of an inability to prepare for cross-examination, or

(ii) by depriving the party against whom the evidence is tendered of a reasonable opportunity to tender evidence in response, or

(c) the interests of justice require it.

[48]         These provisions are disjunctive, so if any one of them applies, then the report in question may be admissible. For that proposition I cite Kaigo Retirement Communities Ltd. v. Sawchuk Developments Company Ltd., 2014 BCSC 1858 at para. 15, and Perry v. Vargas, 2012 BCSC 1537 at para.s 14 to 15.

[49]         In this case, although the plaintiff did not specifically rely on 11‑7(6) or frame his arguments in terms of the reconsiderations in that rule, the plaintiff’s arguments are essentially that the non‑compliance with the 84‑day deadline is unlikely to cause prejudice and the interests of justice require a waiver of the deadline in this case. I accept that the defendant would not be prejudiced in preparing to cross-examine Ms. Beattie. However, I do not consider this an appropriate case in which to exercise my discretion to waive entirely the 84‑day deadline. In my view, the discretion in Rule 11‑7(6) was intended to abridge the timelines in the rules and not to waive them entirely.

[50]         The practice of re‑serving favourable opposing parties’ experts’ reports is not uncommon in personal injury litigation. It was a procedure which was open to the plaintiff in this case. In addition, the interests of justice in this case do not require a waiver. The plaintiff has obtained and is relying on reports from Jeff Padvaiskas, an occupational therapist, and from Niall Trainor, an expert in vocational rehabilitation. Admittedly, Ms. Beattie’s report is more current, but it does not address new issues and would be duplicative. If the plaintiff was concerned about the dates of his experts’ reports, it was open to him to obtain updated reports, and for these reasons, I conclude that the plaintiff should not be permitted to rely on Ms. Beattie’s report.


Court Allows Video Surveillance Evidence Despite Defence Failing to List Document

May 30th, 2018

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, allowing the introduction of video surveillance evidence despite counsel failing to disclose this evidence on their list of documents.

In today’s case (Karpowicz v. Glessing) the Plaintiff was involved in a collision and sued for damages.  The Defendant “retained a private investigator and, on June 27, 2016, filmed a short video of the plaintiff at the Vancouver International Airport accompanied by his wife and children.”  Plaintiff’s counsel was provided the video ahead of a mediation but the document was never listed on the Defendant’s formal list of documents.  The Plaintiff objected to the video’s introduction at trial but the Court ruled the evidence was admissible as there was a lack of prejudice from the failed disclosure.  In reaching this conclusion Madam Justice MacNaughton provided the following reasons:

[34]         I have concluded that the video evidence should be admitted. While I agree that the defendant had a clear obligation under Rule 7‑1(9) to list the video as a document as soon as it came into his possession, I accept defence counsel’s representation that the failure to list the video was not for a tactical advantage at trial. Counsel frankly acknowledged that it was an oversight on her part, and as soon as the plaintiff raised the issue, the video was listed in the supplementary list of documents. The late listing of the video has not caused the plaintiff prejudice.

[35]         If it had been listed in the summer of 2016, presumably it would have been done so as a privileged document. The plaintiff would have known of its existence, but not its content, as the video was not required to be disclosed until the defendant determined to rely on it at trial. On that determination, the video was disclosed to the plaintiff. The disclosure was in advance of the deadline for disclosure in Rule 12‑5(10).

[36]         The plaintiff has had time to consider the video and to prepare to address it in his evidence at trial. The defendant had the right to investigate the plaintiff’s claims and the video is relevant to the issues the plaintiff has put before the court.

[37]         As to the issue of privacy, the video was taken at Vancouver International Airport at the passenger pickup area. The plaintiff and his family had no reasonable expectation of privacy while at the airport. The video focuses on the plaintiff, and the plaintiff’s spouse and the children are incidental to that focus or in the background of the video. Counsel for the defendant has obscured the faces of the children so that they are not identifiable.

[38]         In all these circumstances, I conclude that the video ought to be admitted.