“Ironic” ICBC Expert Witness Position Criticized by BC Supreme Court

As readers of this blog know the BC Government recently overhauled the Rules of Court to limit the number of expert witnesses that can be used in personal injury prosecutions.  This rule is subject to a constitutional challenge and its future is uncertain.  The rule was implemented with the goal of simply saving ICBC money.

With this background in mind interesting reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, commenting on “ironic” submissions from a Defendant relating to the need for expert evidence.

In today’s case (Sekhon v. Gill) the Plaintiff was involved in three collisions and sued for damages.  Liability was admitted for all three crashes.  In the course of trial the Plaintiff presented various expert evidence.  The Defendant suggested even more experts should have been called by the Plaintiff and requested that an adverse inference be made because the Plaintiff did not call her family physician to testify.

Mr. Justice Smith refused to draw an adverse inference and made the following comments about the “ironic” request by ICBC that a Plaintiff should call more expert evidence when they lobbied for rule changes limiting the rights of litigants regarding expert testimony:

[59]         Based on the evidence in this case and the currently applicable authorities, I find there is no basis on which to draw the adverse inference sought by the defendants.

[60]         There is also a further, emerging reason for the court to be cautious about drawing an adverse inference against any party for failing to call specific or additional medical experts. The Lieutenant Governor in Council has recently enacted Rule 11-8 of the Supreme Court Civil Rules…

[61]         This new rule does not apply to cases coming to trial before December 31, 2019 (see Rule 11-8(11)(a)(ii) of the Supreme Court Civil Rules), so does not directly govern this case. However, it clearly indicates a policy to place limits on the number of experts appearing in these kind of cases and the associated expense to the parties.  The Attorney-General has publicly stated that the rule was introduced as part of an effort to control the Insurance Corporation of British Columbia’s litigation costs.  In the circumstances, it is more than a little ironic to hear defence counsel argue that the plaintiff has failed to call enough experts.

[62]         In Mohamud, Fisher J. referred to a plaintiff being expected to call “all doctors” who attended her for important aspects of her injuries. To the extent that was intended to refer to those doctors being called to give expert opinion, that is an expectation the court will no longer be able to have under the new rule. Indeed, plaintiffs who have been treated by multiple doctors will be prima facie barred from calling all of them as experts, no matter how much assistance they may have to offer the court.

[63]         Where a case requires opinions from specialists who assess the plaintiff for medical legal purposes only, a plaintiff may be barred from introducing any opinions from day-to-day treating physicians. The circumstances in which the court can be asked to draw an adverse inference may therefore become even more limited when the new rule comes into effect.