Skip to main content

Tag: Facts and Assumptions

Reviewing Discovery Transcripts No Reason to Exclude Expert Report

Written by admin on . Posted in BCSC Civil Rule 11, Uncategorized. 56 Comments on Reviewing Discovery Transcripts No Reason to Exclude Expert Report

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing whether an expert report should be excluded because the expert reviewed the examination for discovery transcripts of the parties prior to authoring the report.  In short the answer is no.
In this week’s case (Friebel v. Omelchenko) the Plaintiff objected to the admissibility of two defence reports arguing that “it is improper to provide an expert with examination for discovery transcripts and then leave the expert to draw his or her own conclusions as to which facts should be used to support the opinion“.  Madam Justice Ker rejected this submission finding this practice in and of itself does not render the report inadmissible.  In reaching this conclusion the Court provided the following reasons:
[22]         A review of Dr. Sobey’s reports does not give rise to any of the concerns underlying the previous criticism of the practice of allowing experts to review examination for discovery evidence.
[23]         Dr. Sobey was provided with a set of factual assumptions. Those factual assumptions are set out in detail in his report and where further assumptions have been drawn from a review of the documentary evidence those assumptions and their source have been indicated. For instance, at times, Dr. Sobey makes explicit reference to those assumptions and one example can be found at p. 13 of his July 19, 2013 report where in answering question five, he states, “I have been asked to assume that Dr. Omelchenko was available by telephone contact”.
[24]         Moreover, where Dr. Sobey did make factual assumptions from the documentary information provided to him, those assumptions are also clearly set out. As an example, see p. 10 of Dr. Sobey’s July 19 report where, in answering question two, he states:
Review of Dr. Omelchenko’s chart revealed that he obtained the drinking history, evaluated the Mr. Friebel [sic] for current symptoms of withdrawal, and documented the period since Mr. Friebel’s last drink. Dr. Omelchenko’s chart did not comment on whether Mr. Friebel was using other mood altering drugs. I note from the documents and specifically the PharmaNet profile that Mr. Friebel had been prescribed the sedative medication, Zopiclone…
[25]         When read as a whole, Dr. Sobey’s reports leave no doubt as to the factual assumptions underlying his opinion. As such, the case is distinguishable from Sebastian, supra, and the trier of fact is able to properly evaluate and discern whether the factual assumptions have been proven in evidence at trial and what weight should be given to Dr. Sobey’s opinion.
[26]         The plaintiff’s application to have the reports of Dr. Sobey excluded on the basis that he reviewed transcripts from examination for discovery is dismissed.

Expert Reports and the New Rules of Court: The "Factual Assumptions" Requirement

Written by admin on . Posted in BCSC Civil Rule 11, ICBC Liability (fault) Cases. 59 Comments on Expert Reports and the New Rules of Court: The "Factual Assumptions" Requirement


One of the requirements in the new BC Supreme Court Rules is for expert reports to clearly set out the “factual assumptions on which the opinion is based“.  Failure to do so could result in a report being excluded from evidence.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing this requirement.
In this week’s case (Knight v. Li) the Plaintiff attempted to cross 41st Avenue in Vancouver, BC when his vehicle was T-boned by a the Defendant.  The Plaintiff had a stop sign and was the ‘servient driver’.  The Defendant was speeding.  Mr. Justice Harris found the Plaintiff 75% at fault for the crash and the Defendant 25% at fault.  The reasons for judgement are worth reviewing in full for the Court’s through discussion of the legal principles at play in intersection crashes.
In the course of the lawsuit the Plaintiff introduced an expert report from an engineer.  The Defendant objected to the report arguing that it did not comply with the rules of Court.  Mr. Justice Harris ultimately did allow the report into evidence but made the following critical comments addressing an experts need to clearly set out the factual assumptions underpinning their opinions:

[38]         Our new Supreme Court Civil Rules codify the obligations of experts testifying in our Court. In my view, they restate obligations our law has long recognised. The Civil Rules require a clear statement of the facts and assumptions on which a report is based. It was incumbent on Mr. Gough to state clearly the assumptions on which his report was based. He did not do so. He did not provide me with an opinion of the effect of Mr. Li’s excessive speed on his ability to avoid the collision as he claimed. He gave me an opinion of Mr. Li’s ability to avoid the collision if certain assumptions favourable to Mr. Knight were made. He said nothing about being instructed to make those assumptions and nothing about the effect on Mr. Li’s ability to avoid the Accident if those assumptions did not hold.

[39]         It must be remembered that Mr. Gough’s report is his evidence. In my view, the report as written did not comply with the requirements in the Civil Rules to state the facts and assumptions on which it is based. There is nothing improper in an expert accepting assumptions of fact that affect the opinions the expert provides, but they must be clearly stated. If they are not, there is a real risk that the trier of fact could be misled. In this case it required cross-examination to demonstrate the implications of the assumptions for the conclusions reached about Mr. Li’s ability to avoid the Accident. In my view, in this case, given the opinion being offered, the report should have clarified the effect of the assumptions about Mr. Knight’s driving on the conclusions about Mr. Li’s ability to avoid the Accident. By failing to do so, this aspect of the report descended into little more than a piece of advocacy.