Tag: Jones v. Ma

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


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.

Personal Injury Claims and The "Admission" Exception to the Hearsay Rule


Hearsay is an out of Court statement introduced at trial for the truth of its contents.  Generally hearsay evidence is not admissible in Court but there are several exceptions to this.
One well established exception to the hearsay rule is the rule of “admissions against interest“.  If a party to a lawsuit says something that hurts their interests that statement can generally be admitted in Court for its truth.  Reasons for judgement were released today discussing this important principle in a personal injury lawsuit.
In today’s case (Jones v. Ma) the Plaintiff was injured in a BC motor vehicle collision.   After the crash the Plaintiff approached the Defendant and the Defendant admitted fault.   The Plaintiff then asked the Defendant’s permission to record their discussion using her cell-phone.  The Defendant consented and repeated this admission of fault.
In the formal lawsuit the Defendant denied being at fault for the crash and instead sought to blame the Plaintiff.  At trial the Plaintiff introduced the the cell phone recording into evidence.  The Defendant objected arguing that this was inadmissible hearsay.  Mr. Justice Ehrcke disagreed and admitted the evidence finding that if fit the “admissions” exception to the hearsay rule.  In reaching this decision the Court provided the following useful summary and application of the law:
…the admissibility of an out of court admission by a party to a lawsuit….was specifically addressed by the Ontario Court of Appeal in R. v. Foreman (2002), 62 O.R. (3d) 204 (C.A.). In that case Doherty J.A., delivering the judgment of the Court, said at pages 215 to 216:

Admissions, which in the broad sense refer to any statement made by a litigant and tendered as evidence at trial by the opposing party, are admitted without any necessity/reliability analysis. As Sopinka J. explained in R. v. Evans [1993] 3 S.C.R. 653, at page 664:

The rationale for admitting admissions has a different basis than other exceptions to the hearsay rule. Indeed, it is open to dispute whether the evidence is hearsay at all.The practical effect of this doctrinal distinction is that in lieu of seeking independent circumstantial guarantees of trustworthiness, it is sufficient that the evidence is tendered against a party. Its admissibility rests on the theory of the adversary system that what a party has previously stated can be admitted against the party in whose mouth it does not lie to complain of the unreliability of his or her own statements. As stated by Morgan, “[a] party can hardly object that he had no opportunity to cross-examine himself or that he is unworthy of credence save when speaking under sanction of oath” (Morgan, “Basic Problems of Evidence” (1963), pp. 265-6, quoted in McCormick on Evidence, ibid., p. 140). The rule is the same for both criminal and civil cases subject to the special rules governing confessions which apply in criminal cases.  [Emphasis in original].

[10]         I agree with that statement of the law. It was adopted by our Court of Appeal in R. v. Terrico, 2005 BCCA 361. Admissions made by one party to litigation are generally admissible if tendered by the opposing party, without resort to any necessity/reliability analysis.

[11]         The evidence tendered by the plaintiff in this case of her conversation with the defendant Ma at the scene of the accident is admissible in evidence.

[12]         The cell phone recording which was marked as Exhibit A on the voir dire and the transcript of the recording which was marked as Exhibit B may now both be marked as exhibits on the trial proper.

[13]         The fact that the defendant did not understand at the time of the conversation that what she said might be used in litigation is not a basis for excluding the evidence. This is a civil case. Unlike a criminal case, there is no issue here about voluntariness of a statement to a person in authority and no issue about compliance with the requirements of theCanadian Charter of Rights and Freedoms. Counsel for the defendant agrees that the plaintiff was not a person in authority and that she was not a state agent, as those terms are used in the context of confessions in criminal cases.

[14]         The defendant’s concern that only part of the conversation was recorded, that the defendant had hurt her head, that the defendant did not know the use to which the recording would be put, and that the statement might therefore not be reliable, are matters that can be explored in cross-examination and may go to the weight to be attached to this evidence. They do not form a basis for the exclusion of the evidence.

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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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