Tag: bc supreme court rules

Expert Evidence: Fact vs. Opinion

When advancing a personal injury lawsuit in British Columbia expert evidence plays a key role.  Be it the diagnosis of injury, prognosis, future care needs, disability or other topics there are no shortage of areas that call for the assistance of expert evidence.
When preparing for trial notice of expert opinion evidence has to be given in compliance with Rule 40A (after July 1, Rule 40A will be replaced with the new Rule 11).
Just because a professional such as a doctor is giving evidence does not necessarily mean that the Rule regarding expert opinion evidence is triggered.  If an expert is giving purely factual evidence then Rule 40A does not apply.  However, if the evidence is not purely factual but also contains opinion then the notice period in Rule 40A is likely triggered.  So what exactly is an expert opinion?  Last week reasons for judgement were released discussing this distinction.
In last week’s case (Anderson v. Dwyer) the Court was asked whether a chiropractor interpreting an X-ray was factual evidence or opinion evidence.  Mr. Justice Schultes provided the following very useful analysis:

[13] In determining the admissibility of Dr. Wooden’s evidence, it is crucial to bear in mind the distinction between expert opinion and factual evidence that is given by potential expert witnesses.  As the learned author of Phippson on Evidence (16th ed.) helpfully observes at para. 33-10, p. 972:

There is an important if elusive distinction to be made in the categorization of expert evidence.  It is generally accepted that there is a difference between evidence of fact and evidence of opinion notwithstanding that it may be difficult to identify the line which divides the two.  It is also well understood that in practice a witness of fact may not be able entirely to disentangle his perceptions from the inferences he has drawn from them.  Although the courts often talk of “expert evidence” as if it were a single category representing in every case an exception to the rule against the reception of opinion evidence, it is suggested that a similar distinction exists in the evidence of experts and it is one which has considerable relevance both to the procedural aspects and to the assessment of the weight of expert evidence.  Expert witnesses have the advantage of a particular skill or training.  This not only enables them to form opinions and to draw inferences from observed facts but also to identify facts which may be obscure or invisible to the law witness.  The latter might simply be described as scientific evidence; the former as expert evidence of opinion.  A microbiologist who looks through a microscope and identifies a microbe is perceiving a fact, no less than the bank clerk who sees an armed robbery committed.  The only difference is that the former can use a particular instrument and can ascribe objective significance to the data he perceives.  The question of subjective assessment and interpretation which is the essence of opinion evidence hardly enters into the matter at all.  An example of the dichotomy can be seen in the case of a conflict between experts on handwriting as to the authenticity of a document.  By virtue of their training, such experts would be able to distinguish parts of letters or techniques of word formation which a layman would be unable to observe.  This is the scientific part of their work.  The question of which features are significant and the inferences to be drawn from them are questions of judgment, assessment, opinion.  This distinction which has now been accorded a measure of judicial recognition is thought to be of some practical utility in considering the weight of evidence given by experts both taken in isolation and when assessing the merits of two competing theories.

[14] This distinction is a very meaningful one in this case.  Any evidence by Dr. Wooden seeking to offer an opinion about the plaintiff’s injuries, such as the inferences to be drawn from the observations in the x-rays or with respect to the cause or mechanism of the injury, would be prohibited because of the plaintiff’s failure to comply with Rule 40A.  However, the witness’s factual narrative of the actions he took and the observations he made, including describing without interpretation, the anatomical features he observed in the x-rays does not amount to offering an opinion and does not offend the Rule.  The fact that he brings special training or experience to bear in having taken those actions and made those observations is not determinative.  It is whether he draws inferences or offers opinion beyond what the actual evidence itself is capable of revealing.

[15] In this regard, I consider this kind of factual evidence to be analogous to those matters described by Madam Justice Garson as being “more in the nature of observations” as opposed to inferences having complex interpretive or diagnostic components when she described how their inclusion in records sought to be admitted as business records did not offend Rule 40A in Egli v. Egli, 2003 BCSC 1716 at para. 25 which was relied on by the defendant in submissions.

Striking a Jury and Timing in a BC Personal Injury Lawsuit

When personal injury claims, including ICBC claims, are prosecuted in the BC Supreme Court either side has the right to elect trial by jury.  (The exception to this rule is when the claim is prosecuted under BC’s fast track Rules 66 or 68).
For a party to elect trial by Jury they simply need to give notice in accordance with Rule 39(26).
If an opposing party wishes to challenge the election for a jury trial they can oppose it pursuant to Rule 39(27) which holds in part that:

(27) Except in cases of defamation, false imprisonment and malicious prosecution, a party to whom a notice under subrule (26) has been delivered may apply

(a)  within 7 days for an order that the trial or part of it be heard by the court without a jury on the ground that

(i)  the issues require prolonged examination of documents or accounts or a scientific or local investigation which cannot be made conveniently with a jury, or

(ii)  the issues are of an intricate or complex character […]

What if a party opposes trial by jury but fails to challenge the jury election within the 7 day limitation period set out in Rule 39(27)?  Are they out of luck?  Not necessarily and reasons for judgment were released yesterday by the BC Supreme Court, New Westminster Registry, dealing with this are of the law.

In yesterday’s case (Gulamani v. Chandra) the Plaintiff was involved in 2 motor vehicle accidents 10 years apart.  One of the Defendant’s chose to have the case heard by judge and jury.  The Jury notice was filed in 2003.  The Plaintiff brought an application to dismiss the jury notice years after it was filed.

One way to challenge a jury notice outside of the 7 days required by Rule 39(27) is to do so at a pre-trial conference.  This is so because s. 35(4)(a) of the current Supreme Court Rules permits a judge or a master at a pre-trial conference to order that a “trial…be heard by the court without a jury, on any of the grounds set ouyt in Rule 39(27)“.  Yesterday’s case, however, was not heard at a pre-trial conference and this subrule did not assist the Plaintiff.

Rule 3(2) was of assistance which states that:

The court may extend or shorten any period of time provided for in these rules or in an order of the court, notwithstanding that the application for the extension or the order granting the extension is made after the period of time has expired.

In yesterday’s case Madam Justice Arnold-Bailey held it was appropriate to extend the time permitted to challenge the Jury Notice under Rule 3(2) and ultimately ordered that the trial proceed by judge alone.  (the judgement is worth reviewing in full for anyone interested in the factors courts consider when considering whether the trial will require a ‘prolonged examination’ or is too “intricate or complex” to be tried by a jury).  In so ordering the Court summarized and applied the law with respect to late jury strike applications as follows:

[19] In Reischer v. Love & ICBC, 2005 BCSC 1352, the court was faced with similar issues in relation to an application to strike a jury notice in the context of two actions that were going to be heard together.  Well after the original jury notice for the first action was filed, but shortly after the court set a new trial for both actions to be heard together, the plaintiff brought an application to have the jury notice struck.  Drost J. first cited the settled law, explaining that the mode of trial selected for the first action is what determines the mode of trial for the several actions to be heard together.  From this principle flows the further settled point that it is the original jury notice that must be considered with regard to Rule 39(27).  In that case, as well as the case at bar, the seven day time limit had clearly passed.

[20] Drost J. then addressed Rule 35(4)(a) and held that since the application occurred outside the scope of a pre-trial conference, he could not rely upon that section to strike the jury notice either.  These circumstances also parallel the case at bar.

[21] Finally, Drost J. turned to the general judicial discretion to extend time limits afforded in Rule 3(2) and stated (at paras. 37-38) that there are two questions to consider in the circumstances: 1) whether, at an early stage of the proceedings, the plaintiff formed an intention to strike the jury notice, and 2) whether there has been such a change in circumstances as to materially alter the character of the proceedings and render them clearly inappropriate for a trial by judge and jury.  The court answered both questions in the negative, finding in particular that all of the circumstances of the combined actions were known to the plaintiff even when the initial jury notice was filed.

[22] Despite this, the court in Reischer still allowed the time extension for the application to strike the jury notice under Rule 3(2) by relying on the authority of Harder v. Nikolov, [2001] B.C.J. No. 1528 (S.C.), where the court held at para. 17 that lack of timeliness does not necessarily preclude an application to strike a jury notice.  Rather, the time restrictions set out in Rule 39(27) may be overcome if consideration of trial fairness so requires.  In Reischer, at para. 41, Drost J. stated that but for the application of this principle from Harder, the court would have dismissed the plaintiff’s application.

[23] With these decisions in mind, I note firstly that unlike the plaintiff in Reischer, the plaintiff in this matter could not have been aware of all the circumstances in relation to the combined actions dealing with her motor vehicle accidents at the time the original jury notice was filed.  Whereas the accidents in Reischer occurred a relatively short time apart, the accidents in this case occurred a decade apart and the court proceedings in relation to the first accident were essentially at the point of trial before the plaintiff could have possibly been aware of the circumstances arising from the second accident.  I also note that the plaintiff advised of her intention to strike the jury notice within five days of the Court adjourning the first trial and filed her notice of application to strike the jury notice before the Court reset the trial of the two actions.

[24] As to the second question set out in Reischer, and unlike the court’s finding in that case, I do find that a significant change in circumstances has occurred here.  The trial will now be significantly longer and will involve complex legal issues related to causation, including the defence of novus actus, in the context of two accidents that occurred a decade apart.  I find that this is a sufficient change to the character of the proceedings such that a consideration, at least, of the plaintiff’s application to strike the jury notice is necessary and just.

[25] Alternatively, like the court in Reischer, I would in any event also apply Harder and find that the lack of timeliness in the plaintiff’s application is overcome by considerations of trial fairness.

[26] In short, I do not give effect to the Chandra and Doorandish defendants’ initial objections to this application, and I will now turn to consider its merits.

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If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

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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