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Late DME Application Dismissed; Responsive Exam Limitations Discussed

Written by admin on . Posted in BCSC Civil Rule 11, BCSC Civil Rule 7, independent medical exams, Uncategorized.

Helpful reasons for judgement were recently released by the BC Supreme Court, New Westminster Registry, dismissing a defence application to have a Plaintiff assessed by a neurosurgeon.  In short the Court found the application was brought too late in the claim and that there was insufficient evidence to justify a physical exam for a truly ‘responsive‘ medical report.
In the recent case (Dhaliwal v. Owens) the Plaintiff was injured in a 2009 collision.  The injuries included low back pain.  Surgery was anticipated but as time went on the Plaintiff experienced some symptom improvement and surgery became less likely.
In the course of the lawsuit the Defendants put the matter into fast track litigation (Rule 15).  They failed to obtain a medical report in a timely fashion.  When they finally did apply the 84 day service deadline set out in Rule 11-6(3) had come and gone.  The Defendants argued that they needed the report for responsive purposes and further that the cancellation of the Plaintiff’s anticipated surgery amounted to a change of circumstances justifying the late application.   Master Keighley rejected both of these arguments and dismissed the application.  In doing so the Court provided the following reasons:
[7]  Now, I had indicated earlier that it is likely that had this matter come to light a year ago, this application would not have been before me today.  What causes the problem is Rule 11-6(3) which requires that an expert report, in general terms, be delivered at least 84 days prior to the scheduled trial date.  The 84th day, I am told by counsel who have done the arithmetic, passed…almost a couple of weeks ago…
[14]  Now, this is not a situation, and we do sometimes see it, where the physician has either directly or indirectly provided evidence with respect to the necessity of a physical examination of a party.  There is nothing before me in the material to explain why a physical examination is required in this case other than the statements from the paralegal that I have referred to.
[15]  In the case of Wright v. Brauer, a decision of Mr. Justice Savage reported as 2010 BCSC 1282, Justice Savage considering similar circumstances said at paragraph 22
“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)”
Justice Savage dismissed the application and is reference to Rule 11-6(4) harks back to his remarks at paragraph 12 of that decision where he said:

“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.”

He noted that in the case before him, the defendants were, as here, limited by the Rule to what referred to as Justice Williamson in the case of Kelly v. Kelly (1995), 20 BCLR (3d) 232 “truly responsive rebuttal evidence” by virtue of the provisions of Rule 11-6.
[16]  Similarly, Mr. Justice Cullen in the case of Ludecke v. Hillman, 2010 BCSC 1538, considered an appeal from a master’s order which has allowed an examination to provide “truly responsive” evidence.  Justice Cullen upheld the master’s order determining that the necessary evidentiary foundation for the examination was found in the material before him.  In reaching that conclusion, he said:
“To reach the requisite threshold under Rule 11-6(4) the applicant must establish a basis of necessity for the examination to properly respond to the expert witness whose report is served under subrule (3) by the other party.”
[17]  The plaintiff’s injuries, it seems to me, have not really changed in this case.  She has more or less since the outset complained of low back pain, low back problems.  What has changed, if anything, in recent months is the decision of the medical practitioners treating her with regard to the advisability of surgery.  It appears that they have decided for the meantime that surgery is the less desirable option.  Notwithstanding that decision, the plaintiff continues to suffer pain to the extent that she remains, apparently, unable to work.  There has been ample time int his litigation, even before this change in the plaintiff’s circumstances, for the defence to seek and obtain evidence from a neurosurgeon or other specialist with respect to her condition.  Although the provisions of Rule 7-6 and its predecessor Rule were enacted to attempt to affect a level playing field between the parties with respect to medical evidence, I do not see that the defence will be prejudiced by being restricted to an opportunity to have Dr. Turnbull or another practitioner of their choice examine the available evidence and render an opinion at trial as to the appropriate treatment of the plaintiff’s injuries.  Overall, of course, I have been considering the issue of proportionality and in the particularly refined context of an application brought in a case governed by Rule 15-1.
[18]  The application is dismissed.
As of today this case is unreported but, as always, I’m happy to provide a copy of the reasons for judgement to anyone who contacts me and requests these.

Defence Psychatric Exam Request Dismissed for Being Brought Too Late

Written by admin on . Posted in BCSC Civil Rule 11, BCSC Civil Rule 7, independent medical exams, Uncategorized.

Reasons for judgment were released last month dismissing an ICBC request to have a Plaintiff examined by a psychiatrist finding that the application was brought too late in the litigation and would unfairly balance the playing field should the Plaintiff need to respond to the examination.
In last month’s case (De Corde v. De Corde) the Plaintiff was injured in a 2007 collision.  She alleged physical injuries, a head injury and also “emotional distress“.
In the course of the lawsuit the Plaintiff agreed to be assessed by three physicians chosen by the Defendant (or their insurer ICBC).  Specifically a general practitioner, a neurologist and an orthopaedic surgeon.  The Defendant brought an application for the Plaintiff to also be assessed by a psychiatrist.  The application was brought with just barely sufficient time to have a report generated to comply with the time lines set out in the Rules of Court.
Master Bouck dismissed the application finding the medical playing field was already balanced and an additional report by a psychiatrist served on the cusp of the deadline set by the Rules of Court would be prejudicial to the Plaintiff.  The Court provided the following reasons:

[37] The overriding principle is that an independent medical examination ought to be permitted if necessary to ensure reasonable equality between the parties in their preparations for trial.

[38] In this case, there are at least two considerations that compelled the dismissal of the application.

[39] First, there is no basis to suggest that the defendant is at a disadvantage in terms of evidence.

[40] Second, the application is brought so close to trial that the plaintiff might be prejudiced (by the adjournment of the trial) if the order was granted.

[41] This is not a case where a new diagnosis or symptom has arisen since the last independent medical examination. Indeed, much of the information that is relied on by defence in this application was in that party’s possession before the plaintiff attended the examinations by Drs. Wahl and Moll.

[42] The plaintiff’s mental health is commented upon in all of the reports presented to the court. None of the various medical professionals have recommended psychiatric treatment or diagnosis. It is appreciated that the diagnosis of the plaintiff’s symptoms differs as between these medical professionals. However, regardless of the diagnosis, all of these professionals suggest a treatment plan. That plan ranges from simple reassurance to medication to counselling to future neuropsychological reassessments…

[45] In short, there is simply no basis to suggest that the evidence presented to date requires a psychiatric opinion in order to “level the playing field”. Experts on both side of this case make certain treatment recommendations that will probably lead to some resolution of the plaintiff’s mental health symptoms. Whether the plaintiff follows those recommendations goes to the question of mitigation.

[46] Another important factor to consider is the timeliness of the defendant’s request, particularly when the opinions of the three defence experts (let alone those of the plaintiff) have been known for several months.

[47] I accept the submission that given the type of specialist involved, the plaintiff would have been hard pressed to answer Dr. Solomon’s opinion in time for trial. Thus, the plaintiff may be compelled to seek an adjournment of the trial which is scheduled to occur nearly five years after the accident. Such a result would hardly be in keeping with a speedy resolution to the claim: Rule1-3.

[48] In considering the question of prejudice, I presumed that Dr. Solomons would be able to comply with the 84-day deadline. But that deadline is not really the issue. It is the deadlines that the plaintiff must meet that leads to the possible prejudice.

[49] The plaintiff need only demonstrate that an adjournment of the trial is a possibility: Critchley v. McDiarmid, 2009 BCSC 134 at paras. 21 and 22…

[62] Given the timelines that must be met under SCCR together with the common acknowledgment that psychiatric assessments are not so easily obtained on short notice, there appeared to be a real possibility that the trial would be adjourned to allow the plaintiff to address the defence’ s new expert evidence.

[63] Thus, an order requiring the plaintiff’s attendance at a psychiatric independent examination would result in an inequality of evidence favouring the defence. I have already made the same finding in the case at bar.

Court Can't "Ride Roughshod" Over Solicitor's Brief Privilege At a Case Planning Conference

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Reasons for judgement were recently brought to my attention discussing the scope of powers of the Court at Case Planning Conferences. Specifically the Court found that Rule 5-3 does not provide the power to over-ride common law principles of privilege.
In the recent case (Galvon v. Hopkins) the Plaintiff was injured in a motor vehicle collision. She sued for damages. As the lawsuit progressed the Plaintiff did not provide any expert medico-legal evidence to the Defendant.
This concerned the Defendant who brought a Case Planning Conference and obtained an order requiring the Plaintiff to “notify counsel for the defendant of the name of the neurologist with whom the appointment had been made and the date of the appointment, and secondly, that the parties were to provide opposing counsel with written notice forthwith upon any appointment being set for the plaintiff with medical experts, such notice to include the name of the expert, the expertise of the expert, and the date of the appointment“.
The Plaintiff appealed arguing that the Court did not have jurisdiction to make such orders under the Rules of Court. Madam Justice Kloegman agreed and allowed the appeal. In doing so the Court provided the following reasons:
21. I agree with counsel for the plaintiff’s submission that Rule 5-3 cannot be read as to allow the Case Planning Conference Judge or Master to disregard the common law principle of privilege.
22. In my view, Master Bouck was fixated upon settlement of the litigation; always a commendable and important goal of a case planning conference, but not at the cost of ignoring the boundaries of her jurisdiction. It may well be that such information could have been exchanged at a settlement conference, which is a voluntary and without prejudice process, but it should not be mandated as part of trial preparation.
23. …She did not appear to consider that the object of the Rules to avoid trial by ambush only apply to evidence that would be used at trial, not to expert advice received through consultation.
24. By requiring the plaintiff to disclose the very fact of her attendance before a medical expert, and run the risk of an adverse inference if she did not call the expert at trial, the master was also interfering with the plaintiff’s right to elect which witnesses to call. Such interference is not sanctioned, or warranted, I might add, by our Supreme Court Rules.
25. Having concluded that our Rules do not grant the presider at a case planning conference the power to make the orders made by Master Bouck, it follows that she did not have the jurisdiciton to do so.
26. The appeal is allowed and Master Bouck’s orders will be set aside.

Should the Rules of Court Be Flexible for Treating Physicians?

Written by admin on . Posted in BCSC Civil Rule 11, independent medical exams, Uncategorized. 1 Comment on Should the Rules of Court Be Flexible for Treating Physicians?

(The Below article was first published yesterday at Slaw)
There are two types of expert medical witnesses in personal injury cases; treating physicians and ‘professional‘ witnesses.  I don’t note this with any criticism of the latter category but simply point out that often doctors are brought to Court (by both Plaintiffs and Defendants) to act as independent medical experts to provide opinion evidence.  These professional witnesses often have no role in treating an injured plaintiff.
The BC Supreme Court Rules have strict requirements for expert opinion evidence.  These Rules are applied with equal rigour to both categories of experts.   ‘Professional‘ witnesses  often have little difficulty producing reports which comply with the strict requirements of Rule 11-6.  Treating physicians, on the other hand, often have crucial evidence to share and their opinions are highly valued but they sometimes struggle with the technical requirements of the rules of court.
Treating physicians often want little to do with the Court and have little experience with the nuances of writing reports that meet the rules of evidence.  When asked to author medico-legal reports many are reluctant to do so in the first place and when they do the reports are not slick, polished or necessarily compliant with all of Rule 11’s requirements.
This lack of compliance can risk treating experts’ reports being excluded from evidence.  While the Rules of Court provide judges with discretion to allow expert evidence to be admitted even if technically non-compliant with the Rules of Court “if the interests of justice require it“, this threshold often will not be met by explanation of witness inexperience with the Rules of Court.
New York personal injury lawyer Eric Turkewitz raised the following concern in response to judicial scrutiny of treating doctor reports in his jurisdiction:
New York’s No-Fault law is out of control. It seems to have reached the point where judges are almost demanding one of two things from injured patients: That their doctors get legal tutoring on how to write reports that will satisfy the judiciary, or alternatively, that injured patients seek treatment from only those doctors that already know how to write medical-legal reports.
As was illustrated in the recent BC decision of Milliken v. Rowe, a treating expert is perhaps the most desirable witness for a trier of fact to hear from when it comes to addressing a Plaintiff’s injuries.  Appreciating this, can a balance be struck holding these experts to a more flexible standard when providing a Court with opinion evidence?  Should the Rules be amended to create different standards for treating doctors versus professional witnesses?  Thoughts and feedback are appreciated.

Expert Report Admissibility Can Be Determined in Advance of UMP Arbitration

Written by admin on . Posted in BCSC Civil Rule 11, ICBC UMP Cases, Uncategorized.

In my continued efforts to create a searchable UMP Rulings Database, I summarize a 2009 ruling finding that expert report admissibility can be determined ahead of a scheduled arbitration.
In the 2009 decision (COSH v. ICBC) the Claimant was injured in a 2001 collision in California.   In the course of the proceeding the Claimant served an expert report from a rehabilitation consultant discussing future care needs.  ICBC brought an application seeking to exclude the report arguing it should be held “wholly inadmissible“.  The Plaintiff argued that the report should be admitted but in any event it was premature to decide the issue until Arbitration was underway and the report was formally tendered.
Arbitrator Yule ultimately held that the report was admissible but that certain portions went beyond the authors area of expertise.   Prior to reaching this decision Arbitrator Yule provided the following comments about adjudicating these applications prior to arbitration:
25. …I do not consider the fact that the report may never be introduced into evidence under Rule 40A(2) because COSH may elect to treat the report as notice and introduce Dr. V’s opinions viva voce at the Hearing under Rule 40A(3), as a reason for declining to address the Respondent’s objections.  In either instance there will arise the same question of admissibility, ie. whether some of his expressed opinions are outside the area of exprtise as outlined in the CV.  If his evidence were tendered through Dr. V. at the Hearing, the only difference would be that Dr. V. would give evidence and be questioned about his qualificaitons in the course of determining the scope of his admissible opinions.  However, the fundamental proposition of which the Respondent relies is that some of the opinions expressed in Dr. V’s report can only be properly given by someone wiht a degree in medicine and it is not disputed that Dr. V. does not hold such a degree.
26.  It also seems to me beneficial to both parties to know in advance of the new Hearing date whether the Respondent’s objection will be sustained….Some clarity on the admissibility of Dr. V’s opinions may assist both parties in determining what additional steps they wish to take in preparation for the new Hearing.

More on the Responding Report "IME" Limitation

Written by admin on . Posted in BCSC Civil Rule 11, BCSC Civil Rule 7, independent medical exams, Uncategorized. 56 Comments on More on the Responding Report "IME" Limitation


Adding to this growing database of caselaw considering the relationship of Rule 7-6 and  Rule 11-6(4), reasons for judgement were recently released by the BC Supreme Court, Chilliwack Registry, demonstrating that “responding” independent medical exams will not be granted as a matter of course.
In the recent case (Godfrey v. Black) the Plaintiff was injured in a motor vehicle collision.  She sued for damages.  Her pleadings specifically identified an alleged TMJ Injury.  In the course of the lawsuit the Plaintiff was examined for discovery with respect to her TMJ pain.  She also served an expert report addressing this injury in compliance with the time-lines set out in the Rules of Court.
The Defendant brought an application for the Plaintiff to be assessed by a TMJ specialist of their choosing.  Their application was brought after expiry of the 84 day expert report service deadline   They argued an exam was necessary in order to obtain a responding report under Rule 11-6(4).   Master Caldwell disagreed and dismissed the motion finding no sufficient evidence was tendered to explain the need for a physical exam.  In doing so the Court provided the following reasons:
[2]  I am told that the pleadings, when they were issued, specifically identified among other things injury to the temporomandibular joint (“TMJ”).  That, it is said, and I agree, put the defence on specific notice that there was an issue relating to the jaw and the TMJ…
[9]  There is no evidence before me to indicate why this particular dental expert believes it necessary for him to do a physical examination of the patient.  In fact, the instruction letter from counsel specifically asks for among other things a critique of the report of the first dentist.  Many of those bullets which appear in the letter which I will not make further reference to appear able to be done on the basis of a criticism of methodology or findings as opposed to requiring an independent examination of the person of the plaintiff…
[13]  I have been referred to several cases, but the one which I find the most helpful is the case of Wright v. Brauer, 2010 BCSC 1282 a decision of Mr. Justice Savage in similar circumstances where he was dealing with a trial date in the near future and an examination such as this where there was no medical evidence as to why a physical examination was necessary in order to provide a truly rebuttal or critical report…
[15]  In my view, the same reasoning applies in this case…
[18]  This application comes late in the day, a year after the defence was well aware that TMJ was an issue that should be looked into.  Had they wished to get a full report, they were well able to make that application or the request earlier.  I am not satisfied on the material that there is a basis for me to infer from the submissions of counsel or the material filed that an independent medical examination of the person of the plaintiff is required in order for this dentist to provide a truly rebuttal report.
These reasons are unpublished but as always I’m happy to share a copy with anyone who contacts me and requests these.

Treating Surgeon Allowed to Give Expert Evidence Despite Non-Compliance With Rules of Court

Written by admin on . Posted in BCSC Civil Rule 11, independent medical exams, Uncategorized.


Although the BC Supreme Court Rules have strict requirements with respect to the admission of expert opinion evidence Rule 11-7(6) gives the Court a wide discretion to dispense with these if “the interests of justice require it“.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this discretion.
In this week’s case (Milliken v. Rowe) the Plaintiff was injured in a 2007 collision.  At trial the Plaintiff presented expert opinion evidence from a privately retained physiatrist.  The Plaintiff’s treating orthopaedic surgeon was also called to the stand, however, he was not called as an expert witness but rather as a witness of fact.  Despite this limitation the Court exercised its discretion under Rule 11-7(6) and permitted the treating surgeon to give opinion evidence addressing diagnosis and prognosis.  In doing so Mr. Justice Davies provided the following reasons:

[55] Dr. Zarkadas was not called as an expert witness at trial but he is obviously a well-qualified orthopaedic surgeon. He is also Ms. Milliken’s treating physician concerning her right shoulder difficulties.

[56] As such he was able to assist me in assessing Ms. Milliken’s future prospects if the surgery is undertaken or if it is not. To that extent, his more immediate involvement with and treatment of Ms. Milliken allows insight that was not previously available to Dr. Andrew Travlos (adduced as opinion evidence by the plaintiff) arising from his examinations and enquiries six months earlier.

[57] In those circumstances, notwithstanding the failure of the plaintiff to seek to have Dr. Zarkadas qualified to provide opinion evidence, I determined to receive his evidence concerning his diagnosis and prognosis related to Ms. Milliken’s right shoulder injuries.

[58] I did so over the objection of the defendant because of my belief that the determination of damages in this case should be based upon the best evidence available.

[59] In my opinion, the ability to achieve a just result should be served, rather than thwarted, by the application of procedural rules.

[60] The Court’s power to exercise discretion to allow relief from the harsh consequences of non-compliance with procedural rules recognizes that principle.

[61] I also, however, recognized that the defendant could be prejudiced by the admission and consideration of Dr. Zarkadas’ prognostic evidence if not given an opportunity to answer it.

[62] I accordingly provided the defendant an opportunity to consider whether to call rebuttal evidence before rendering judgment.

[63] I was subsequently informed that the defendant did not intend to do so.

Prejudice To Defendant Not Enough To Compel Plaintiff to Attend "Responding" IME

Written by admin on . Posted in BCSC Civil Rule 11, BCSC Civil Rule 7, independent medical exams, Uncategorized. 50 Comments on Prejudice To Defendant Not Enough To Compel Plaintiff to Attend "Responding" IME

(Update November 16, 2011 – The case discussed in the below post has now been published and full reasons for judgement can be found here)
One of the patterns that is becoming very clear under the New Rules of Court is that Parties ignore the 84 day requirement for exchange of expert evidence at their peril.
Often times Defendants apply for an order compelling a Plaintiff to attend an Independent Medical Exam beyond this deadline.  Numerous cases have considered such applications with the argument that an assessment is necessary in order to obtain a ‘responding‘ report under the more generous 42 day deadline of Rule 11-6(4).  Reasons for judgement were recently released by the BC Supreme Court, Vancouver Registry, considering and rejecting such an argument.
In today’s case (Scott v. Ridgway) the Plaintiff was injured and sued for damages.  In the course of the lawsuit the Plaintiff served the report of a vocational consultant.  The Defendant applied for an order to compel the Plaintiff to attend an independent exam in order to obtain a responding report.   The Defendant brought the application after the 84 day deadline.  Madam Justice Kloegman dismissed the application finding that prejudice is not enough to compel an IME for the purpose of a responding report.  The Court provided the following useful reasons:
[6]  I am not persuaded that the plaintiff is required to attend before Dr. Banks in order for the defendant to file a responsive report.  I am aware of the prejudice claimed by the defendant that their expert’s opinion may be given less weight because of lack of examination of the plaintiff.  However, if they are prejudiced, it is of their making and not the result of any conduct of the plaintiff.
[7]  The rules are clear.  They must be obeyed in the absence of special circumstances.  There are no special circumstances here that would allow the defendant to file a report containing fresh opinion.  The defendant will be restricted to analyzing and respond to the plaintiff’s report.
I should note that some previous cases have ordered physical examination for responding report purposes, however, in such cases the Court was presented with affidavit evidence from the proposed expert explaining why such an examination is necessary.
In today’s case the Defendant did provide an affidavit from a doctor but the court placed no weight in it and criticized it for being “lifted from another affidavit sworn by another expert in another case with other expertise than that of Dr. Cook”.
Today’s reasons are unpublished but as always I’m happy to share a copy with anyone who contacts me and requests these.

Expert Report Excluded For "Advocacy" and Other Short-Comings

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Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, excluding an expert report from evidence for multiple short-comings.  The Court’s criticism included the fact that the report failed to properly set out the expert’s qualifications, offended the ‘ultimate issue‘ rule, failed to list documents relied on in forming the expert’s opinion and lastly for being ‘advocacy‘ in the guise of opinion.
In this week’s case (Turpin v. Manufacturers Life Insurance Company) the Plaintiff purchased travel insurance with the Defendant.  While on a trip to California she fell ill and required medical treatment.  Her expenses quickly grew and exceeded $27,000.  The Defendant refused to pay relying on a pre-existing condition exclusion in the policy.  The Plaintiff sued and succeeded.
In the course of the trial the Defendant tried to introduced a report from a doctor of internal medicine to “provide an opinion as to whether (the Plaintiff’s) medical treatment between October 5, 2007 and October 9, 2007 was the result of a pre-existing condition as defined in the Travel Insurance Policy“.
Mr. Justice Wilson ruled that the report was inadmissible for multiple reasons.  The case is worth reviewing for the Court’s full discussion of the shortcomings of the report.  In my continued effort to highlight expert reports being rejected for ‘advocacy’ I reproduce Mr. Justice Wilson’s comments on the frowned upon practice of experts using bold font to highlight portions of their opinion:

[29] Finally, the plaintiffs object that the report is advocacy on behalf of the defendants.

[30] This objection is based, in part, upon the author’s use of bold font and italicized portions of the report.

[31] In Warkentin v. Riggs, this court was faced with an expert’s report which adopted “… a particular format”:

He uses bold font to highlight words and phrases which benefit the plaintiff’s claim and support his diagnosis. This is apparent in his review of Ms. Warkentin’s history and medical reports. That which is contrary to the plaintiff’s claim or does not support his diagnosis is either omitted or presented in non-bolded font. This emphasis in support of the plaintiff’s claim and the exclusion of contrary matters is advocacy.

I adopt those comments as applicable in this case.

[32] This use of emphasis is not a practise to be encouraged. In this case, it may have been introduced by counsel’s letter of instructions, which suggested that the author may “indicate the relative degree of importance of any particular fact or assumption”.

[33] If the author of the report regards a factor as a major premise leading to the conclusion, then it should be so stated. Not left to unexplained emphasis in the body of the report.

[34] It was for those foregoing reasons that I ruled the report inadmissible.

Joint Expert Witness Appointed Despite "Vigorous" Defendant Opposition

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Reasons for judgement were recently released by the BC Supreme Court, Vancouver Registry, appointing a joint expert witness against the wishes of a Defendant in an on-going legal dispute.  Although this recent case is not a personal injury claim I summarize the findings because it is the first case I’m aware of appointing a joint witness in a contested application under the ‘new’ BC Supreme Court Civil Rules.
In the recent case (Leer and Four L. Industries v. Muskwa Valley Ventures Ltd.) the Plaintiff and Defendants had a falling out in their commercial dealings.  The Plaintiff sued seeking an order that the Defendant “purchase his shares at fair market value“.  At a Case Planning Conference the Plaintiff sought an order that a joint business valuator be appointed to value the shares.  The personal Defendant “vigorously oppose(ed)” the idea of a joint expert.
Ultimately Master Scarth granted the order and in doing so provided the following useful comments of general interest in applications for joint experts:
[4] Rule 5-3(1)(k)(i) provides that at a case planning conference, a judge or master may order that expert evidence on any one or more issues be given by one jointly-instructed expert. Given the prohibition in Rule 5-3(2)(a) against hearing an application supported by affidavit evidence at a case planning conference, the court is required to rest any exercise of discretion on the pleadings and submissions to the extent that they do not require recourse to affidavit evidence: Przybysz v. Crowe, 2011 BCSC 731 at para. 59; Vernon v. British Columbia (Liquor Distribution Branch), 2010 BCSC 1688; and Jurezak v. Mauro, 2011 BCSC 512 – considering Rule 12-2(11)…
[14] Rule 11-3 was recently considered in Benedetti v. Breker, 2011 BCSC 464. Master Baker noted that while joint experts are not new to litigation in British Columbia, the new rules clearly have brought greater focus and emphasis to the appointment of joint experts and invite wider application of that process: paragraph 11…
[18] The personal defendants object to paying for expert evidence which is part of the plaintiffs’ case. Why should they pay for a report which the plaintiffs require? The answer is because it is a proportionate way to conduct this proceeding.



[19] Read together with Rule 1-3 which sets out the object of the rules, Rule 11-3, like joint expert rules in other jurisdictions, is intended to reduce litigation costs and promote the conduct of a proceeding in ways consistent with the amount involved. While in this case, the amount at issue is not yet resolved and will not be until an opinion has been obtained, the buyout of Royer in 2009 gives some indication that the amount is likely modest. In such circumstances, proportionality suggests that an effort should be made to avoid duplication of the costs of obtaining an expert report which is the likely outcome if a joint report is not ordered.

[20] It follows that the parties are required to share the cost of the expert, at least at the outset. The ultimate determination as to costs is for the trial judge.

[21] I will add that a report as to value may benefit all parties in another way. The value of Leer’s shares has been an issue and a topic of discussion between the parties since 2009, when the personal defendants offered him a buyout. A valuation will provide the parties with the information required to settle this longstanding dispute, and may promote that result.

[22] I conclude that it is appropriate to exercise my discretion in favour of the plaintiffs and to make the order set out in Rule 5-3 that expert evidence as to valuation of Leer’s shares be given by a jointly appointed expert.