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Taking the Mystery Out of Examinations For Discovery

Written by admin on . Posted in Civil Procedure, Uncategorized. 61 Comments on Taking the Mystery Out of Examinations For Discovery

As I previously discussed in the below video, examination for discovery is a process where the opposing side in a BC Supreme Court lawsuit can bring you in front of a Court Reporter and get your sworn answers to questions about relevant topics. Discoveries are designed to learn about your case and to hurt your case.  It is one of the most important pre-trial steps in Injury litigation and a Plaintiff’s performance can play a key role in whether the case settles or proceeds to trial.
Most people have some anxiety and apprehension before discovery.  One reason for this is because the discovery process is unfamiliar and often Plaintiff’s don’t know what to expect.  The best way to ease this anxiety is to learn about the process ahead of time.  To that end I’ll let you in on a secret:  Most Defence lawyers in ICBC claims use a cheat sheet to guide their questions.  This cheat sheet is the Law Society of BC Practice Checklists Manual and the most up to date version was recently released by the BC Law Society.  You don’t need to be a lawyer to get a copy, it’s available free on-line and can be found here.
Most ICBC defence lawyers use this or a similar checklist to structure their questions.  More junior lawyers typically follow the script fairly closely while more experienced lawyers deviate frequently.  Whoever your opposing lawyer may be you can bet they will cover many of the topics highlighted on this checklist at your examination for discovery.
If you spend some time going over this form you will learn not only what types of areas will be covered at your discovery but also why these questions will be asked.  With this knowledge hopefully the discovery process will be a little less mysterious and less stressful.

More on ICBC Claims and Hit and Run Lawsuits: The Notice Requirement

Written by admin on . Posted in Civil Procedure, Uncategorized. 53 Comments on More on ICBC Claims and Hit and Run Lawsuits: The Notice Requirement

As I’ve previously written, section 24 of the BC Insurance (Vehicle) Act gives the victims of Hit and Run accidents the right to sue ICBC directly in certain circumstances.  There are exceptions and limitations to this right and one such limitation is that a Plaintiff has to give proper notice to ICBC that they intend to claim under section 24 otherwise their right to sue ICBC can be taken away.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, dealing with this area of law.
In today’s case (Mudrie v. Grove) the Plaintiff was involved in a 2007 rear-end collision.  After the crash the Plaintiff and the driver of the other vehicle exchanged their respective information.  The other driver identified himself as “Donald Grove“.   About a year after the crash the Plaintiff conducted a “pre-court vehicle plate search“.  The search gave rise to information which suggested that “Grove” may have provided inaccurate information about his identity.
The Plaintiff started a lawsuit naming not only Donald Grove but also ICBC as a Defendant under section 24 of the Insurance (Vehicle) Act.  ICBC was named in the event that the identify of the true driver was unknown.  ICBC brought a motion to dismiss the lawsuit against them arguing that in order to sue under section 24 a Plaintiff must provide written notice to ICBC within 6 months after the accident and that the Plaintiff failed to comply with this requirement.  Mr. Justice Saunders agreed and dismissed the lawsyit against ICBC.  In doing so the Court noted as follows:
[43] I conclude on the evidence that the plaintiff’s obligation to provide written notice to ICBC under s. 24(2) did not arise at the time of the accident. However, as I have found, the negative vehicle plate search results reported on June 5, 2008 must have led – quite reasonably – to the plaintiff apprehending the potential for an unidentified driver claim; otherwise, there is no explanation for the writ having been issued with pseudonymous defendants. In the words of the Supreme Court of Canada in Peixeiro, at that point, or very shortly thereafter, the plaintiff could reasonably have discovered that he had a cause of action against ICBC. I therefore find the plaintiff did have that obligation to notify ICBC as soon as reasonably practicable, within days of June 5, 2008.

[44]         The plaintiff argues that constructive notice of the claim was given thereafter on September 4, 2008, when ICBC was contacted to determine if it had any information regarding Mr. Grove. In my view, even if I could overlook the statutory requirement that notice be in writing, this contact was nowhere close to being sufficient to discharge the plaintiff’s obligation. There is no evidence of any indication having been given to ICBC that an unidentified driver claim might be pursued.

[45]         The only notice, written or otherwise, given ICBC in this case was the writ and statement of claim. I see nothing in the statute which precludes the pleadings themselves serving as the required notice under ss. 24(2). The purpose of the notice provision is to provide ICBC with sufficient opportunity to make its own investigation of the other driver’s or owner’s identity:  Stelmock v. I.C.B.C. (1982), 42 B.C.L.R. 145 (S.C.) at para. 10; Goltzman v. McKenzie (1989), 36 B.C.L.R. (2d) 228 (C.A.). Successful identification of the driver or owner will lead to a tort claim, relieving ICBC from direct liability. If those persons are insured by ICBC, it may eventually have to make an indemnity payment on its assureds’ behalf, but may possibly then have the potential of recouping some of its loss through adjustments to those assureds’ future premiums. In the case of an out-of-province driver, ICBC may of course avoid liability altogether. Given the potential for fraud in cases of alleged hit-and-run accidents, notice to ICBC will also enable it to investigate the circumstances of the reported accident to determine if the plaintiff’s claim has merit:  Epp v. Harden Estate (1988), 24 B.C.L.R (2d) 89, 31 C.C.L.I. 229 (B.C.S.C.). These legislative purposes may be fulfilled through ICBC receiving details of an accident through a writ, as opposed to discrete advance notification that a claim will be made. And in my view the writ with its attached statement of claim, in the present case, disclosed sufficient detail that service on ICBC alone would have met the notice requirement, if it had been done in a timely manner.

[46]         This brings us to the real question in this case: whether ICBC received notification of the claim, through the writ, within the time parameters given in the statute. The writ was not served until April 2009, ten months after the negative vehicle plate search. No explanation for this delay has been offered.

[47]         In respect of interpreting the notice requirement, the plaintiff argues that the legislative purpose behind the requirement is the same as that which lies behind the two-month notice requirement to municipalities under s. 286 of the Local Government Act, R.S.B.C. 1996 c. 323: the prevention of prejudice to the defence of a government body. It is argued that this court should direct its inquiry into whether ICBC has been prejudiced by the late notification; the logic of that argument is that ICBC cannot be presumed to have been prejudiced, when the trail left by “Mr. Grove” would already have gone cold by the time the plaintiff ought to have realized this was an unidentified driver case. The notice provisions of the two statutes are, however, entirely different. Under the Local Government Act, there is a blanket requirement that notice of claims falling within the ambit of s. 286 be delivered within two months, but subsection (3) specifically provides that the failure to give notice, or sufficient notice, is not a bar to maintaining an action if the court believes (a) there was reasonable excuse, and (b) the municipality has suffered no prejudice. In contrast, under the Insurance (Vehicle) Act’s s.24, the obligation is to give notice as soon as reasonably practicable, and in any event – meaning, whether reasonably practicable or not – within six months.

[48]         If the prevention of prejudice could be said to be the dominant purpose of the notice requirement, it would appear that the legislature has either deemed there to be prejudice after six months has elapsed, or has otherwise determined, as a matter of policy, that ICBC’s exposure to such claims ought to be capped at that point. To subject that provision to an overarching, implied test involving the finding of real prejudice would be tantamount to rewriting the statute. The most that could be said is that a consideration of prejudice might, in certain circumstances, be implied by the qualifier “reasonably”. But even so, that cannot assist the plaintiff in the present case, when notice was not given to ICBC until long after the six-month period had lapsed.

[49]         ICBC was not notified of this claim within six months of when the plaintiff could reasonably have discovered that he had a cause of action against ICBC. The claim against ICBC is therefore dismissed. The parties are at liberty to make written submissions as to costs.

More on BC Injury Claims and Litigation Privilege

Written by admin on . Posted in Civil Procedure, Uncategorized.


Two decisions were released this week by the BC Supreme Court dealing with the issue of litigation privilege in BC personal injury lawsuits.  The first case stressed the importance of lawyers properly identifying and listing documents, the second dealt with evidence gathered by an insurance company during the “investigative stage” following a motor vehicle collision.
In the first case (Craig v. Smith) the Plaintiff was injured in a 2006 motor vehicle collision.   The Defendant claimed privilege over various documents and the Plaintiff brought a motion to produce these.   The parties worked out many of their respective differences before the Court gave judgment but prior to resolving the issues Master Caldwell gave the following guidance stressing the importance of lawyers properly disclosing relevant documents:
[5] It is counsel’s duty to determine relevance and claims of privilege; see G.W.L. Properties Ltd. v. W.R Grace & Co., [1992] B.C.J. No. 2387. There is an obligation to describe documents in sufficient detail to enable other parties to assess the validity of the claim of litigation privilege; see Hetherington v. Loo et al, 2007 BCSC 129 and Nanaimo Shipyard Ltd. v. Keith et al, 2007 BCSC 9. The dominant purpose test is still the appropriate test to be applied in determining litigation privilege but is “more compatible with the contemporary trend favouring increased …mutual and reciprocal disclosure which is the hallmark of the judicial process”; see Blank v. Canada (Minister of Justice), 2006 SCC 39.  This is all well settled law.
In the second case (Pshelensky v. Dion) the Plaintiff was involved in a 2006 collision.  Within a week of the crash the Plaintiff hired a personal injury lawyer to represent her.  Shortly after this the Defendant’s insurance company obtained a statement from the Defendant and witnesses to the crash.  After the lawsuit started the Defendant refused to produce a copy of the statement arguing that since the Plaintiff hired a lawyer a lawsuit was reasonably contemplated when the statements were taken and they were protected by “litigation privilege“.
Master Taylor disagreed and ordered that the Defendant produce the statements. In doing so the Court provided the following reasons:

[18]         I take the view that the two statements taken from the driver and passenger of the defendant motor vehicle were essentially taken to determine the cause of the accident and, of course, to determine who might be at fault.

[19]         In my view the defendants rely upon the fact that the plaintiff retained counsel early on in these proceedings or shortly after the accident to suggest that litigation was contemplated.  I do not agree with this proposition for in my view it was far too early in the proceedings to make a final determination as to whether or not litigation would be inevitable.

[20]         I further take the view that the statements taken from Badr and Dion were so close to the time of the accident that they were very early in the continuum before the dominant purpose became one of furthering the course of litigation.  Accordingly I find that both statements are not privileged and should be released to the plaintiff applicant.

This is just one in a series of recent cases making it clear that when an insurance company is investigating why a crash happened it will be very difficult to keep statements from the Plaintiff in a subsequent lawsuit.  You can click here to read my archived posts further dealing with the issue of litigation privilege in the context of BC personal injury lawsuits.

New Rules of Court Get First Judicial Interpretation: The Transitional Rule

Written by admin on . Posted in BCSC Civil Rule 24, Civil Procedure, Uncategorized. 51 Comments on New Rules of Court Get First Judicial Interpretation: The Transitional Rule

I have volunteered to keep an eye on the New BC Supreme Court Rules and write about decisions interpreting and applying these.  Today the first judgement considering the New Rules has come to my attention.  Today’s case dealt with Rule 24, the transitional rule.
In today’s case (Easton v. Cooper) the Plaintiff was involved in 3 motor vehicle collisions.  The Plaintiff sued for damages for each crash.  The lawsuits were started under the old Rules of Court but were set to proceed to trial in November, 2010 (some 5 months after the New Rules came into force).  The lawsuits were all started under Rule 68 of the old rules which required parties to exchange summaries of the evidence they expect their witnesses to give at trial.  The Plaintiff did not produce statements in compliance with this requirement.
The Defendant brought a motion to force  the Plaintiff to provide this evidence.  The Plaintiff opposed arguing that she no longer needs to exchange these statements because the trial will proceed under the new rules.  Mr. Justice Voith sided with the Defendants and ordered that the Plaintiff provide summaries of evidence as required under the old rules.  In reaching this conclusion the Court had the first opportunity that I’m aware of to consider section 24 of the New Rules of Court (the section dealing with parties obligations in lawsuits started under the old rules but that are ongoing aftger the New Rules came into force).  Mr. Justice Voith provided the following interpretation of this section:

[4]             Rule 24-1(14) of the New Rules provides:

(14)      If a step in a proceeding is taken before July 1, 2010, the former Supreme Court Rules apply to any right or obligation arising out of or relating to that step if and to the extent that that right or obligation is to have effect before September 1, 2010.

[5]             The interpretation of Rule 24-1(14) turns on both the meaning of “step in a proceeding” as well as the time period that is book-ended by the two dates within the provision…

[13]         Based on the foregoing authorities, within the “Rules context”, a “step” means a formal step expressly permitted or required by the Rules.

[14]         Rule 24-1(14) specifically focuses on a narrow window of time. It addresses instances where a step undertaken prior to July 1, 2010 gives rise to an obligation that is required to be satisfied prior to September 1, 2010. By way of example, the “step” of delivering a demand for discovery of documents created a right on the part of the initiating party and a concomitant obligation on the part of the recipient of the demand to comply with the time frames and substantive requirements of the former Rules. So long as the time frame for that obligation ends before September 1, 2010 the response or action is governed under the former Rules.

[15]         In this case Rule 24-1(14) is not engaged.

[16]         Rule 68(31) of the former Rules provided:

Witnesses

(31)      Within 90 days after the close of pleadings or within 90 days after the action becomes an expedited action, whichever is later, each party to an expedited action must deliver to each other party

(a)        a list, in Form 141, of the witnesses that the party delivering the list proposes to call at the trial of the expedited action, which list must

(i)    include the party delivering the list, if that party intends to give evidence at trial, and

(ii)    exclude any expert witnesses referred to in subrule (33), and

(b)        for each of the witnesses included in the list, a written summary of the evidence that the party believes that witness will give at trial.

[17]         In each of the three actions commence by Ms. Easton, the 90 day period provided for by the former Rule 68(31), as well as the obligation or formal step created by that Rule, had expired well before July 1, 2010. The application of Rule 24-1(14) simply does not come into play. The fact that the ultimate trial of these various actions will post-date September 1, 2010, is of no moment and does not detract from the obligation to adhere to the formal requirements established by the earlier Rules…

[21] The plaintiff is directed to provide proper witness statements to counsel for the defendants within 21 days of the date that these Reasons for Judgment are issued.

In addition to the usual variety of topics I cover on this blog I will continue to post about the new Rules of Court.  If anyone is aware of any recent cases worth noting here please don’t hesitate to contact me.

How Long is Too Long for an ICBC Claim to go to Trial?

Written by admin on . Posted in Civil Procedure, Uncategorized.


As I’ve previously written, ICBC and other personal injury claims can take a long time prior to settlement or trial.  This is particularly true in cases involving serious injuries where the long term prognosis remains unknown for  a number of years.  As I explained in this video, it is difficult to value a claim until the prognosis is known and it could be risky to settle a claim before this.
Appreciating that injury claims can take a long time, how long is too long?  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing this issue.
In this week’s case (Hullenaar v. Wells) the Plaintiff was allegedly injured in an assault in 1997.  He claimed two cars being driven by the defendants boxed him in and then one of the defendants “struck him in the face with a stick causing damage” which led to a serious eye injury.
The Plaintiff sued the alleged assailants and ICBC within the time set out in the Limitation Act.  The personal injury lawsuit dragged on for years.  ICBC grew tired of the matter and brought a court application to dismiss the claim for want of prosecution.  Master Caldwell granted the application and dismissed the lawsuit.  In doing so the Court provided the following comments:

[16]         Once inordinate and inexcusable delay is found, a rebuttable presumption of prejudice to the defendants arises; see Tundra Helicopters. None of the evidence presented to me rebutted that presumption.

[17]         There is some evidence that the plaintiff and the defendant Flynn were examined for discovery in 2002 and 2003 respectively; minimal if any examination of the defendant Wells has occurred. None of the transcripts of the discovery were produced.

[18]         This is a case which will depend largely on the evidence of the parties who were present at the time of the event. The evidence at trial will be the13 – 15 year old recollection evidence of witnesses who had spent a significant part of the evening drinking alcohol at private parties and commercial bars.

[19]         In my view the delay of 13 years, which will be almost 15 years by the time of trial, has prejudiced and will continue to prejudice the defendants in their ability to present a full and proper defence.

[20]         This is an unfortunate case. The plaintiff appears to have suffered significant injury. It is hard to imagine why the matter was not moved forward with anything approaching reasonable speed, however the plaintiff alone is responsible for the delay. Based upon the evidence presented, the interests of justice do not mitigate in favour of allowing the plaintiff to continue his action, rather they favour the dismissal sought by the defendant/third party.

[21]         The action is dismissed for want of prosecution. The applicant ICBC is entitled to its costs of this application as sought; no other party sought or is entitled to its costs.

While patience is important in the settlement of personal injury claims this case demonstrates that even with very serious injuries there is such as thing as “too long”.

The New BC Supreme Court Practice Directions Released

Written by admin on . Posted in Civil Procedure, Uncategorized.


As readers of this blog know, the New BC Supreme Court Civil Rules are now in force.
Over the years a number of practice directions were released which addressed the BC Supreme Court rules.  These were abolished when the New Rules came into force and accordingly a new set of practice directions were needed.
The BC Government has now released new Administrative Notices and Practice Directions.  Substantively these are basically the same as the old Practice Directions and have simply been re-worded to recognize the new Rules of Court.
One improvement worth noting, however, is the numbering system.  Under the old Rules Practice Directions were referred to by date making them more cumbersome to access and refer to.  The new Practice Directions have been numbered chronologically (from PD-1 to PD-24) making them more user friendly.

Just Because You Have It Doesn't Mean You Should Use It – Trials and Discovery Evidence

Written by admin on . Posted in Civil Procedure, Uncategorized. 56 Comments on Just Because You Have It Doesn't Mean You Should Use It – Trials and Discovery Evidence


As I’ve previously discussed, one of the main purposes of an examination for discovery is to ‘discover‘ evidence that can help your case or hurt your opponents.
After a discovery a lawyer can read relevant portions of the transcript in at trial and the evidence can have the same weight as if it was given live in Court.   However, just because you have evidence obtained from a discovery does not mean it should be used.
If you read evidence in that advances your opponents case (or that contradicts yours) the Court can rely on this to dismiss your lawsuit.  Reasons for judgement were released today by the BC Court of Appeal discussing this principle and some of its limits.
In today’s case (Duncan v. Mazurek) the Plaintiff, a pedestrian who was jay-walking, was struck by the Defendant’s vehicle.  At trial both the Plaintiff and the Defendant were found at fault.  The Defendant successfully appealed and a new trial was ordered.  Before reaching this verdict the BC High Court had the opportunity to discuss the weight of discovery evidence at trial.
During the trial the Plaintiff read in portions of the Defendant’s examination for discovery.  Some of the evidence apparently contradicted the evidence supportive of the Plaintiff’s case.  The Defendant argued that doing this  amounted to the Plaintiff adopting the Defendants evidence and leaving the trial judge with no choice but to accept it.  The BC Court of Appeal disagreed however provided the following caution about reading in unhelpful evidence from a discovery transcript:
[30] The defendant, relying on Chetwynd-Palmer v. Spinnakers, [1993] B.C.J. No. 95 (S.C.) and Tsatsos v. Johnson (1970), 74 W.W.R. 315, says that by reading in that discovery the plaintiff adopted and approbated his evidence, and the trial judge is not entitled to reject it and choose a different version more favourable to the plaintiff. I am not convinced those cases go that far. While the plaintiff may be at some risk in reading in such evidence as part of her case, where there is contradictory evidence it is my view that the trial judge must retain discretion to weigh it all in reaching his findings
Before you read in discovery evidence ask yourself if the evidence helps your case or hurts your opponents.  If the answer is no to both questions you should think twice before letting the evidence go before the Court.

Happy Canada Day – Bring on the New Rules…

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With Canada Day comes a big change in the British Columbia legal landscape.  The New BC Supreme Court Civil Rules are now officially in force.   You can click here to read the summary I posted several months ago highlighting some of the biggest changes under the New Rules.
For those of you still getting up to speed on the New Rules, you can access them here.
For those of you that are members of The Trial Lawyers Association of BC I suggest you log in to TLABC’s website and click on the “www.tlabc.org/CourtRules” link which can be found under the heading “Recent News“.
The TLABC Rules Committe has done a great job summarizing the New Rules and highlighting the key differences between the New Rules and the old ones along with making some useful suggestions and tips for anticipated issues that lawyers and clients may face under the New Rules.
Lastly, a table of concordance can be found at the Attorney General of BC’s website.
For my part I will continue to post about BC Supreme Court judgments interpreting and applying the New Rules with a particular focus on cases dealing with Fast Track Litigation, Expert Reports and the concept of Proportionality.  If anyone is aware of a case of particular interest that you’d like me to discuss on the BC Injury Law Blog feel free to contact me directly.

You Can't Sue Twice; The Doctrine of Res Judicata

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Res Judicata is a legal principle which prevents a claimant from having their legal issues decided twice.  Once you’ve had your day in Court on an issue you are stuck with the result (subject to an appeal).  You can’t sue again and have a second trial hoping for a different result.  Reasons for judgement were released today by the BC Court of Appeal discussing the scope of this principle.
In today’s case (Innes v. Bui) the parties were involved in a a two vehicle intersection collision in 2001.  They approached each other from opposite directions.  The Plaintiff (Innes) attempted to go through the intersection and the Defendant (Bui) commenced a left turn.  The vehicles then collided.
ICBC, as is often the case in British Columbia, was the insurer for both parties.  ICBC decided that the Ms. Bui was entirely at fault.  This raised her insurance premiums.  Ms. Bui sued ICBC in small claims court arguing that she was not at fault and should have her increased premiums returned.  Eventually Ms. Innes was substituted for ICBC.   Ms. Innes was defended by an ICBC appointed lawyer.  ICBC argued that Ms. Bui was at fault.
At trial the Judge found that both Ms. Innes and Ms. Bui were ‘honest people” and he could not choose between their testimony.  The Small Claims judge dismissed the lawsuit finding that “In essence, I cannot choose between them, and to use a probably inappropriate sports metaphor, tie goes to the defendant in a case like this.  In other words, because I cannot decide who it is that I believe, I  have to dismiss the claim, and that is what I am doing.”
At the same time Ms. Innes filed a separate lawsuit against Ms. Bui in the BC Supreme Court alleging that Ms. Bui was at fault.  The Plaintiff was asking for compensation for her personal injury claims.  ICBC appointed a lawyer to Defend Ms. Bui and in this lawsuit argued that Ms. Innes was at fault.     ICBC brought a motion asking the lawsuit to be dismissed based on the principle of “res judicata“.  They argued that since the Small Claims judge already heard the issue of fault and called it a ‘tie‘ Ms. Innes’ case needs to be dismissed in the same way that Ms. Bui’s case was.
A chambers’ judge agreed and dismissed the lawsuit.  The Plaintiff appealed.  The BC High Court overturned the dismissal and found that the Chamber’s judge misapplied the law of ‘res judicata’.  The BC Court of Appeal provided the following useful analysis setting out the limits of the res judicata principle:

19]         There are two forms of the doctrine of res judicata: cause of action estoppel and issue estoppel.  Both operate where the court has adjudicated a cause of action between two or more parties and one of them seeks to re-litigate on the same facts.  Where the cause of action is the same, cause of action estoppel operates to prevent re-litigation of any matter that was raised or should have been raised in the prior proceeding.  Where the cause of action in the two proceedings is different, issue estoppel operates to prevent re-litigation of any issue determined in the prior proceeding.

[20]         The pre-conditions to making out issue estoppel are stated in Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248 at 254:

Lord Guest in Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2), at p. 935, defined the requirements of issue estoppel as:

… (1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies …..

It seems to me that in the circumstances of this case, all that had to be considered on both motions before the court was whether the criteria set out in Angle had been met and, if they had been met, whether the court should exercise its discretion against applying the doctrine of res judicata.

[30]         In my opinion, it cannot be said that the question of liability for the collision was adjudicated upon in the Small Claims proceeding.  Having decided as a fact that the parties left their respective stop signs at “more or less the same time”, the Small Claims judge failed to consider the other important factual question before him – whether Ms. Bui had her left-turn signal on.  Furthermore, he failed to consider the rules of the road imposed upon each of the parties under the applicable sections of the Motor Vehicle Act, R.S.C.B. 1996, c. 318 and how those rules would apply to the determination of responsibility in tort for the collision.  This was not a case of inevitable accident or of no negligence.  One or the other of the parties was wholly responsible, or liability was to be divided.

[31]         The reasons of the Small Claims judge fell well short of deciding the negligence question.  That issue remains alive in the Supreme Court action.  The res judicata arguments of both parties fail.

[32]         The above is enough to allow this appeal.

Who's the Expert? The Rule Against "Corporate Reports"

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When a party introduces an expert report at trial in the BC Supreme Court one of the requirements is that the report sets out “the name of the person primarily responsible for the content of the statement“.  If a party fails to do so they risk having the report excluded from evidence.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this.
In this week’s case (Jones v. Ma) the Plaintiff was involved in a motor vehicle accident.  She sued for damages.  Fault was at issue and in support of their case the Defendants hired an engineering firm who produced an accident reconstruction report.  The report was signed by a Forensic Engineer.
The Plaintiff objected to the admission of the report arguing that it was not the report of the expert who signed it, rather it was “a corporate report which embodies the observations and opinions of several individuals, without clearly distinguishing who made the various observations on which the opinions are based and who engaged in the process of forming the opinions that are expressed in the report.”
The Engineer was cross examined and it become evident that “the majority of the work on the report was not done by (the engineer that signed it), but rather by other persons in the firm he works for”.  The Court went on to exclude the report from evidence.  Mr. Justice Ehrcke provided the following useful summary and application of the law:

[11]         This is not simply a matter of form. The purpose of the rule is to ensure fairness to both parties by providing the party on whom the report is served with adequate notice to enable them to effectively cross-examine the expert and to properly instruct their own expert if they choose to retain one.

[12]         The relevant case law was reviewed by Burnyeat J. in Dhaliwal v. Bassi, 2007 BCSC 548, 73 B.C.L.R. (4th) 170. In that case, the Court was presented with an expert report of a Dr. Passey who, in forming his opinions, relied on psychological questionnaires administered by a Dr. Ross. Mr. Justice Burnyeat wrote…:

[4]        The purposes of Rule 40A are clear:  (a) neither side should be taken by surprise by expert evidence (Sterritt v. McLeod (2000), 74 B.C.L.R. (3d) 371 (B.C.C.A.) at para. 33) and neither side should be ambushed or surprised at trial; (b) to ensure fairness to the parties and to promote the orderly progression of the trial (C.A. v. Critchley(1996), 4 C.P.C. (4th) 269 (B.C.S.C.) at para. 15). The burden on Mr. Bassi to show that I should exercise my discretion to allow the report to be introduced has been described as a:  “… relatively heavy burden ….”:  McKay v. Passmore, [2005] B.C.J. (Q.L.) No. 1232 (B.C.S.C.), at para. 26. The question which arises is whether there is “… substantial and irremediable prejudice ….” so as to justify the exclusion of the report on the basis that the statement does not comply with Rule 40A(5)(c) of the Rules of Court:  C.A. v. Critchley,supra, at para. 12…

In my view, a document is not a written statement setting out the opinion of an expert unless it appears clearly from the face of that document that the opinions in it are those of the individual expert who prepared and signed the statement. Our rules make no provision for the entry in evidence of joint or corporate opinions. The opinion must be that of an individual expert and it must fall, of course, within the scope of her own expertise. The opinion cannot simply be a reporting of the opinions of others. The statement, to be admissible, must show clearly that this is the case.

I find some support for this view in the decision of my brother Judge Macdonald in Emil Anderson Construction Co. Ltd. … As that case points out, there is a real possibility of procedural prejudice to cross-examining counsel if he or she cannot tell from the report which of the opinions are truly those held by the witness giving evidence and which are simply opinions of other team members reported to her and asserted by her in the written report. (at paras. 11-12)

…

[10]      Unless the authors of all parts of an opinion are known, unless the qualifications of each person contributing to the opinion are known, and unless the facts upon which each of the persons contributing to an opinion are set out, the cross-examination of an expert witness regarding the opinion that had been provided would be impossible.

[13]         In my view, the report tendered by the defendant in the present case does not comply with the requirements of Rule 40A(5), and it would cause irreparable prejudice to the plaintiff if the report were admitted.

[14]         The report is excluded from evidence.

I should point out that this case was decided relying on the current BC Supreme Court Rule 40A(5)(c).  As readers of this blog know the BC Supreme Court Rules are being overhauled on July 1, 2010 and some of the biggest changes relate to the rule concerning expert opinion evidence.

Rule 40A(5)(c) reads that “The statement shall set out or be accompanied by a supplementary statement setting out…the name of the person primarily responsible for the content of the statement.”

The new rule dealing with the content of expert reports is Rule 11-6 which states

“An expert’s report that is to be tendered as evidence at the trial must be signed by the expert, must include the certification required under Rule 11-2 (2) and must set out the following:

(a) the expert’s name, address and area of expertise;…”
While the language has changed somewhat the underlying purpose of the requirement appears the same and that is to not prejudice the opposing party’s ability to cross examine the opinion.  It seems this case will retain its value as a precedent under the New BC Supreme Court Rules but time will tell.