The New BC Supreme Court Rules and "Responsive" Expert Reports
Important reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, interpreting and applying Rule 11-6(4) for the first time. This rule deals with “responsive” expert opinion evidence.
Under the old Rules of Court parties could call responsive expert evidence without notice provided the evidence was truly responsive. The new rules of court changed this and require responsive expert reports to be served 42 days ahead of the scheduled trial.
In today’s case (Wright v. Bower) the Plaintiff was involved in a motor vehicle collision and alleged chronic back pain as a result of the crash. Her lawyer served expert reports addressing these injuries in compliance with the time lines set out in the rules of court. The Defendant brought a motion to compel the Plaintiff to attend an examination with an orthopaedic surgeon in order to obtain a ‘responsive’ report. The Plaintiff opposed arguing that an examination was not necessary for the Defendant to obtain a truly responsive report. Mr. Justice Savage agreed with the Plaintiff and dismissed the motion. In doing so the Court provide the following useful reasons setting the parameters for responsive expert evidence:
 Rule 11-6(4) was enacted to fill a lacuna in the Rules. Under the former Rules, Rule 40A permitted parties to call expert evidence in reply without notice at trial. In order for such evidence to be admitted, however, it had to be truly responsive to the expert evidence of a witness called by the opposing party.
 In Stainer, supra, the British Columbia Court of Appeal considered Rule 40A(3) and the scope of the Court’s discretion to admit responsive evidence. At paragraphs 16-18, Finch J.A. said:
 …The admission of expert evidence is now governed by Rule 40A(3)
An expert may give oral opinion evidence of a written statement if the opinion has been delivered to every party of record at least sixty days before the expert testifies.
 That rule applies equally to all parties. In the normal course, a defendant will wish to protect his right to adduce expert evidence at trial by giving the notice required by that rule. But the court retains a discretion to admit responsive evidence of which notice has not been given: Pedersen v. Degelder (1985), 62 B.C.L.R. 253 (B.C.S.C.); Kroll v. Eli Lilly Canada Inc. (1995), 5 B.C.L.R. (3d) 7 (S.C.); and Kelly v. Kelly (1995), 20 B.C.L.R. (3d) 232 (S.C.). In the latter case Mr. Justice Williamson said:
I would restrict, of course, as courts I think must, the practice of having opinion evidence without notice strictly to truly responsive rebuttal evidence, and I think that if that rule is carefully observed, there should be no difficulties.
 That is, in my respectful view, a correct statement of the proper practice. …
 Amongst other things, the parties argued before me regarding whether the new Rules have substantively changed the practice which existed under Rule 40A. They agreed that this is an important practice point, and a case of first impression.
 Rule 40A gave the Court discretion to admit responsive evidence of which notice had not been given. Rule 11-6(4) now provides that notice must be given of responsive expert evidence (although I note that the Court retains discretion to admit expert evidence of which sufficient notice has not been given).
 I would expect that, in the ordinary course, an examination would be ordered under Rule 7-6(1) where a person’s medical condition was in issue in an action, provided it was requested in a timely way.
 However, at this point in time in the action, the defendants are limited to what Mr. Justice Williamson referred to in Kelly, supra, as “truly responsive rebuttal evidence”. The application must be considered in that light; the question on this application is not one of notice, but whether the Examination should be ordered to enable the defendant to file responsive evidence. The authorizing Rule, 7-6(1) uses the term “may”.
 In Kroll v. Eli Lilly Canada Inc. (1995), 5 B.C.L.R. (3d) 7, Sanders J., as she then was, noted that “true response evidence, does not permit fresh opinion evidence to masquerade as answer to the other side’s reports”.
 In C.N. Railway v. H.M.T.Q. in Right of Canada, 2002 BCSC 1669, Henderson J. considered the admissability of “reply reports” holding that only the portions of the reports that provided a critical analysis of the methodology of the opposing expert were admissible as responsive evidence. The portions of the reports describing the authors’ own opinions on the matters in issue were not admitted.
 In this case, the defendants do not explain why an examination is required in these circumstances, other than a statement by a legal assistant that counsel says such is “necessary to properly defend this action and to respond to the reports of Dr. Weckworth and Dr. O’Connor”. Master McCallum in White v. Gait, 2003 BCSC 2023 declined to order an examination where it had not been shown why such was required to produce a responsive report.
 In my opinion, the bare assertion reported to a legal assistant in this case is insufficient to support an order under Rule 7-6(1) that the plaintiff attend the Examination, when the defendants are limited to providing response reports under Rule 11-6(4). In the circumstances, the application is dismissed. The plaintiff is entitled to costs of the application.
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