"Outrageous" Behavior Still Not Enough to Overcome Expert Witness Immunity

Although the  UK Supreme Court has recently stripped away at expert witness immunity the BC Courts appear reluctant to do so.  Reasons for judgement were released last week by the BC Court of Appeal addressing this.
In last week’s case (Lower v. Stasiuk) the parties were involved in a family law proceeding.  In the course of the proceeding a psychiatrist provided evidence who was found to be an “advocate” and whose actions were deemed “outrageous“.  Following this the Claimant sought to add the psychiatrist as a party and to seek special costs against him.  Both the BC Supreme Court and Court of Appeal refused to allow this noting that expert witness immunity guarded against such a remedy.  The BC Court of Appeal provided the following reasons:
[69]         It is not clear to me that the exception to witness immunity articulated in Phillips properly applies to a witness in Dr. Hay’s position.
[70]         Secondly, as noted by at least two of the justices in Jones, it has not been determined that Phillips was correctly decided.  Dr. Hay argues that Smith J. misinterpreted the Symphony case, on which he relied, and points out that in Symphony, the claim for third party costs (which was rejected by the Court of Appeal) was made on the basis that the third-party company had funded and been the “driving force” behind the defence (at 149) ? akin to maintenance.  Mr. Justice Smith expressly acknowledged that one of the bases for the claim against the third party in Symphony was that it was maintaining the action (at para. 60).
[71]         Thirdly, Dr. Hay suggests that adopting the exception to witness immunity from Phillips creates uncertainty about the boundaries of the immunity.  The evidence of the expert witness in Phillips was rejected on the basis that he breached his duty to the court by failing to view the issues objectively and straying into advocacy (see Smith J.’s reasons for judgment from the hearing in which the expert’s evidence was considered:  Phillips v. Symes (No. 1), [2004] EWHC 1887 (Ch) at para. 94).  Dr. Hay asks how an expert would know in advance what conduct could expose him to a claim for costs.
[72]         All of these reasons suggest caution in adopting the exception to witness immunity as has apparently been done in the U.K.
[73]         Another reason not to follow Phillips is that the trial judge did not have the opportunity to consider it and this Court does not have his decision on the question to review.  Were we to embark on such a change in the law at first instance, Dr. Hay’s only opportunity for an appeal would be with leave of the Supreme Court of Canada.  It is more appropriate that such a change be considered in the normal manner at first instance by a justice of the B.C. Supreme Court, followed by review by this Court.
[74]         I find no basis to interfere with the trial judge’s conclusion that witness immunity bars the father’s application to add him as a party for the purpose of assessing special costs.
[75]         It follows that I would not accede to this ground of appeal.

Advocacy in the Guise of Opinion, bc injury law, Expert Witness Immunity, Lower v. Stasiuk

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ERIK
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When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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