Tag: Dhunga v. Ukardi

Reasons for judgment were released today addressing the boundaries of the BC Supreme Court’s power to make orders respecting the identity of expert witnesses at a Case Planning Conference.
In today’s case (Dhunga v. Ukardi) the Defendant set down a Case Planning Conference some 15 months before trial and “sought an order that the plaintiff immediately disclose the areas of expertise of any experts whose evidence will be tendered at trial and an order limiting the expert evidence at trial to those areas of expertise.“.  Mr. Justice Smith rejected this request finding the Court has no jurisdiction to make such an order.  In reaching this conclusion the Court provided the following reasons:
[5] The orders that may be made at a CPC are set out in Rule 5-3(1). The relevant ones for the purpose of these reasons are Rule 5-3(1)(k) and (v):
(1) At a case planning conference, the case planning conference judge or master may make one or more of the following orders in respect of the action, whether or not on the application of a party:
…
(k) respecting experts, including, without limitation, orders
(i) that the expert evidence on any one or more issues be given by one jointly-instructed expert,
(ii) respecting the number of experts a party may call,
(iii) that the parties’ experts must confer before the service of their respective reports,
(iv) setting a date by which an expert’s report must be served on the other parties of record, and
(v) respecting the issues on which an expert may be called;
…
(v) any orders the judge or master considers will further the object of these Supreme Court Civil Rules.
..
[16] As pointed out in Amezcua, Rule 5-3(1)(k) sets out a number of specific orders that may be made in regard to experts, but those do not include an order disclosing an expert’s identity or the area of his or her expertise before the report is served, much less an order barring any additional experts or areas of expertise. If Rule 11-1(2) was intended to refer to such an order, I would have expected to see a corresponding provision in Rule 5-3(1)(k).
[17] I recognize that the list of specific orders in Rule 5-3(1)(k) is stated not to limit the orders that may be made and that Rule 5-3(1)(v) allows for any other orders the judge or master considers will further the object of the rules. However, as was said in Galvon, such general provisions are not sufficient to override basic and clearly established common law rights…
[22] Rule 11-1(2) cannot be used at a CPC to force a party to identify specific medical experts or areas of medical expertise or to limit the party’s case at trial to those experts.
To my knowledge this case is not yet publicly reported but a copy of the reasons can be found here: Dhugha v Ukardi