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Tag: New BC Civil Rules

The New BC Supreme Court Civil Rules and Admissibility of Expert Reports

Written by admin on . Posted in Civil Procedure, Uncategorized. 109 Comments on The New BC Supreme Court Civil Rules and Admissibility of Expert Reports

One of the biggest changes in the new BC Supreme Court Civil Rules (click here and here to read my previous posts on these rules) are those with respect to the requirements for admissibility of expert reports.  These changes are significant for ICBC and other Personal Injury Lawyers because these types of lawsuits are heavily dependent on expert opinion evidence.  From medical doctors to engineers to vocational specialists, personal injury trials are perhaps more reliant on expert evidence than any other type of trial.
One thing we should all keep in mind is that as of July 1, 2010 ongoing lawsuits will be deemed to be started under the new rules.  This means that any report ordered now that will be used in trial after July 1, 2010 will have to comply with the new rules.  For this reason it is vital that lawyers and expert witnesses alike become immediately familiar with the new Civil Rules.
Under the current Supreme Court Rules expert evidence requirements are governed by Rule 40-A.  These are rather modest.  Rule 40A(2) requires that expert reports be exchanged “to every party of record at least 60 days before the statement is tendered in evidence” and Rule 40A(5) requires that the reports set out “the qualifications of the expert, the facts and assumptions on which the opinion is based, and the name of the person primarily responsible for the content of the statement”
Under the new BC Civil Rules requirements of expert reports are set out in Rule 11-6.  Below I reproduce Rule 11-6 in its entirety.  On review it is clear that the new rule has significant changes compared to the current Rule 40A.
One of the most obvious changes is the time when expert evidence needs to be exchanged.  Currently reports need to be exchanged 60 days before they are put into evidence.  The new rule requires reports to be exchanged at least 84 days ‘before the scheduled trial date‘ and goes on to create a second category of reports called “responding reports” which need to be served “at least 42 days before the scheduled trial date”
The other significant change relates to requirements for admissibility.    Rule 11-6(1) requires experts to be much more clear and detailed about how they arrived at their opinions as compared to the current Rule 40A.  Although, to be fair, these changes are really little more than a codification of the common law that has developed around Rule 40-A.
The new rule also improves on the disclosure obligations to opposing counsel.  Under the current rule opposing counsel is not entitled to review the experts working files and materials until the expert takes the stand.  This can lead to unnecessary delay and surprise at trial.  Under the new Rule 11-6(8) opposing parties are entitled to fulsome pre-trial disclosure of the experts materials which will let lawyers better prepare for cross examination.
Other parts of Rule 11 contain interesting provisions about court appointed experts, joint experts and the role of the expert in the lawsuit.  I hope to write about these shortly.  Overall these improvements will likely be for the better, however, lawyers and doctors can be stubborn and it may take some adjustment for all of us to get used to these changes.
RULE 11-6 – EXPERT REPORTS
Requirements for report
(1) 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;
(b) the expert’s qualifications and employment and educational experience in his or her area of expertise;
(c) the instructions provided to the expert in relation to the proceeding;
(d) the nature of the opinion being sought and each issue in the proceeding to which the opinion relates;
(e) the expert’s opinion respecting each issue and, if there is a range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range;
(f) the expert’s reasons for his or her opinion, including
(i) a description of the factual assumptions on which the opinion is based,
(ii) a description of any research conducted by the expert that led him or her to form the opinion, and
(iii) a list of every document, if any, relied on by the expert in forming the opinion.
Proof of qualifications
(2) The assertion of qualifications of an expert is evidence of them.
Service of report
(3) Unless the court otherwise orders, at least 84 days before the scheduled trial date, an expert’s report, other than the report of an expert appointed by the court under Rule 11-5, must be served on every party of record, along with written notice that the report is being served under this rule,
(a) by the party who intends, with leave of the court under Rule 11-3 (9) or otherwise, to tender the expert’s report at trial, or
(b) if 2 or more parties jointly appointed the expert, by each party who intends to tender the expert’s report at trial.
Service of responding report
(4) Unless the court otherwise orders, if a party intends to tender an expert’s report at trial to respond to an expert witness whose report is served under subrule (3), the party must serve on every party of record, at least 42 days before the scheduled trial date,
(a) the responding report, and
(b) notice that the responding report is being served under this rule.
Supplementary report of joint or court-appointed expert
(5) If, after an expert’s report is served under subrule (3) (b), the expert’s opinion changes in a material way,
(a) the expert must, as soon as practicable, prepare a supplementary report and ensure that that supplementary report is provided to the party who served the report under subrule (3), and
(b) the party to whom the supplementary report is provided under paragraph (a) of this subrule must promptly serve that supplementary report on every other party of record.
Supplementary report of own expert
(6) If, after an expert’s report is served under subrule (3) (a) or (4), the expert’s opinion changes in a material way and the party who served the report intends to tender that expert’s report at trial despite the change,
(a) the expert must, as soon as practicable, prepare a supplementary report and ensure that that supplementary report is provided to the party, and
(b) the party must promptly serve that supplementary report on every other party of record.
Requirements for supplementary report
(7) A supplementary report under Rule 11-5 (11) or under subrule (5) (a) or (6) (a) of this
rule must
(a) be identified as a supplementary report,
(b) be signed by the expert,
(c) include the certification required under Rule 11-2 (2), and
(d) set out the change in the expert’s opinion and the reason for it.
Production of documents
(8) Unless the court otherwise orders, if a report of a party’s own expert appointed under Rule 11-3 (9) or 11-4 is served under this rule, the party who served the report must,
(a) promptly after being asked to do so by a party of record, serve on the requesting party whichever one or more of the following has been requested:
(i) any written statement or statements of facts on which the expert’s opinion is based;
(ii) a record of any independent observations made by the expert in relation to the report;
(iii) any data compiled by the expert in relation to the report;
(iv) the results of any test conducted by or for the expert, or of any inspection conducted by the expert, if the expert has relied on that test or inspection in forming his or her opinion, and
(b) if asked to do so by a party of record, make available to the requesting party for review and copying the contents of the expert’s file relating to the preparation of the opinion set out in the expert’s report,
(i) if the request is made within 14 days before the scheduled trial date, promptly after receipt of that request, or
(ii) in any other case, at least 14 days before the scheduled trial date.
Notice of trial date to expert
(9) The person who is required to serve the report or supplementary report of an expert under this rule must, promptly after the appointment of the expert or promptly after a trial date has been obtained, whichever is later, inform the expert of the scheduled trial date and that the expert may be required to attend at trial for cross-examination.
Notice of objection to expert opinion evidence
(10) A party who receives an expert report or supplementary report under this Part must, on the earlier of the date of the trial management conference and the date that is 21 days before the scheduled trial date, serve on every party of record a notice of any objection to the admissibility of the expert’s evidence that the party receiving the report or supplementary report intends to raise at trial.
When objection not permitted
(11) Unless the court otherwise orders, if reasonable notice of an objection could have been given under subrule (10), the objection must not be permitted at trial if that notice was not given.

New BC Supreme Court Civil Rules – Some Initial Thoughts

Written by admin on . Posted in Civil Procedure, Uncategorized.

As I posted yesterday, the BC Government has announced a full overhaul of the current BC Supreme Court Rules to take effect on July 1, 2010. You can click here to read a full copy of the new Rules.  These new rules will apply to all BC Personal Injury and ICBC Claims prosecuted in the Supreme Court after they come into force.
I’ve now had a chance to review these new Rules in their entirety.  The first thing I noticed is that most of the new Rules are similar if not identical to the current ones in their wording.   This is very important as the countless precedents built up over the years interpreting the current rules should still be of significant assistance when applied to the new rules.
More than anything else, the new Rules are organized in a far better fashion than the current BC Supreme Court Rules.  This improvement is more coherent and logical and should make them easier to get through for people unfamiliar with Supreme Court Procedure.
In addition to improved organization, there are some significant changes made to the substance of these Rules.  None of these changes jumped out at me as particularly concerning for personal injury litigation and surprisinly the overall changes seem to be for the better.
For today’s post I’ll illustrate one example.   The current BC Supeme Court Rules have 2 competing ‘fast track litigation’ rules.  Rule 66 and Rule 68.  These rules both have some significant advantages and significant shortcomings for litigants.  These rules overlap and litigants wishing to take advantage of fast track litigation procedures are forced to choose between the 2 rules relative strengths and weaknesses.  Under the New Civil Rules these have been replaced with one “fast track litigation” rule.  This can be found in Part 15 of the new rules.
Rule 15, in my opinion, takes the best aspects of Rule 66 and 68 and leaves out most of their shortcomings. Rule 15, like Rule 68, applies to cases below $100,000.  It also applies to cases that can be completed in 3 days or less and this appears to be independent of the claims value.  This rule does away with the cumbersome ‘will say’ requirement of Rule 68 and allows 2 hour examinations for discovery.  This rule also increases the minimal costs allowable under Rule 66 and permits costs awards more reflective of conventional litigation in the BC Supreme Court.  The Rule also does away with the ‘one expert’ limit of Rule 68 which to date has kept most BC personal injury lawyers from using the rule.
Below I reproduce the new Rule 15 in full.  I’d be interested in the thoughts of other BC Injury Lawyers about the apparent improvements in this rule over our current fast track rules 66 and 68.
RULE 15-1 – FAST TRACK LITIGATION
When rule applies
(1) Subject to subrule (4) and unless the court otherwise orders, this rule applies to an action if
(a) the only claims in the action are for one or more of money, real property, a builder’s lien and personal property and the total of the following amounts is $100,000 or less, exclusive of interest and costs:
(i) the amount of any money claimed in the action by the plaintiff for pecuniary loss;
(ii) the amount of any money to be claimed in the action by the plaintiff for non-pecuniary loss;
(iii) the fair market value, as at the date the action is commenced, of
(A) all real property and all interests in real property, and
(B) all personal property and all interests in personal property claimed in the action by the plaintiff,
(b) the trial of the action can be completed within 3 days,
(c) the parties to the action consent, or
(d) the court, on its own motion or on the application of any party, so orders.
Subsequent filings
(2) If this rule applies to an action,
(a) any party may file a notice of fast track action in Form 61, and
(b) the words “Subject to Rule 15-1” must be added to the style of proceeding, immediately below the listed parties, for all documents filed after the notice of fast track action is filed under paragraph (a) or the court order is made under subrule (1) (d), as the case may be.
Damages not limited
(3) Nothing in this rule prevents a court from awarding damages to a plaintiff in a fast track action for an amount in excess of $100,000.
Rule does not apply to class proceedings
(4) This rule does not apply to a class proceeding within the meaning of the Class Proceedings Act.
Conflict
(5) These Supreme Court Civil Rules apply to a fast track action but in the event of a conflict between this rule and another rule, this rule applies.
When rule ceases to apply
(6) This rule ceases to apply to a fast track action if the court, on its own motion or on the application of any party, so orders.
Case planning conference required
(7) Subject to subrule (8), a party to a fast track action must not serve on another party a notice of application or an affidavit in support of an application unless a case planning conference or a trial management conference has been conducted in relation to the action.
Exception
(8) Subrule (7) does not apply to an application made
(a) for an order under subrule (6) that this rule cease to apply to the action,
(b) to obtain leave to bring an application referred to in subrule (9),
(c) under Rule 9-5, 9-6 or 9-7,
(d) to add, remove or substitute a party, or
(e) by consent.
Court may relieve
(9) On application by a party, a judge or master may relieve a party from the requirements of subrule (7) if
(a) it is impracticable or unfair to require the party to comply with the requirements of subrule (7), or
(b) the application referred to in subrule (7) is urgent.
Trial to be without jury
(10) A trial of a fast track action must be heard by the court without a jury.
Oral discovery
(11) Unless the court otherwise orders, in a fast track action the examinations for discovery of a party of record, including any person referred to in Rule 7-2 (1) (b) who is examined in relation to that party of record, by all parties of record who are adverse in interest must not, in total, exceed in duration
(a) 2 hours, or
(b) any greater period to which the person to be examined consents.
When discoveries must be completed
(12) Unless the court otherwise orders or the parties to the examination consent, all examinations for discovery in a fast track action must be completed at least 14 days before the scheduled trial date.
Setting of trial date
(13) If a party to a fast track action applies for a trial date within 4 months after the date on which this rule becomes applicable to the action, the registrar must set a date for the trial that is not later than 4 months after the application for the trial date.
If trial will require more than 3 days
(14) If, as a result of the trial management conference in a fast track action, the trial management conference judge considers that the trial will likely require more than 3 days, the trial management conference judge
(a) may adjourn the trial to a date to be fixed as if the action were not subject to this rule, and
(b) is not seized of the action.
Costs
(15) Unless the court otherwise orders or the parties consent, and subject to Rule 14-1 (10), the amount of costs, exclusive of disbursements, to which a party to a fast track action is entitled is as follows:
(a) if the time spent on the hearing of the trial is one day or less, $8,000;
(b) if the time spent on the hearing of the trial is 2 days or less but more than one day, $9,500;
(c) if the time spent on the hearing of the trial is more than 2 days, $11,000.
Settlement offers
(16) In exercising its discretion under subrule (15), the court may consider an offer to settle as defined in Rule 9-1.
Taxes to be added to costs
(17) If tax is payable by a party to a fast track action in respect of legal services, an additional amount to compensate for that tax must be added to the costs to which the party is entitled under subrule (15), which additional amount must be determined by multiplying the amount of costs to which the party is entitled under subrule (15) by the percentage rate of the tax.

More on BC Supreme Court Trials and Costs

Written by admin on . Posted in Civil Procedure, ICBC LVI (Low Velocity Impact) Cases, Uncategorized.

I’ve previously posted that when a Plaintiff in a BC Supreme Court Lawsuit is awarded damages in the Small Claims Court Jurisdiction ($25,000 or less) the Plaintiff is usually not permitted to court ‘costs’.
This is so because Rule 57(10) of the Supreme Court Rules holds that:
A plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there is sufficient reason for bringing the proceeding in the Supreme Court and so orders.
Today, reasons for judgement were released by the BC Supreme Court dealing with this section and the issue of when there is ‘sufficient reason for bringing a proceeding in the Supreme Court.’
In today’s case (Munro v. Thompson) the Plaintiff was awarded just over $12,000 for injuries sustained in a 2006 BC Car Crash.  The Defendant was apparently insured by ICBC and subject to ICBC’s Low Velocity Impact Defence.
The Plaintiff brought application seeking court ‘costs’.  He argued as follows:

[7]             The plaintiff says that “sufficient reason” is to be considered as at the time of commencement of proceedings: Riemann v. Aziz [2009] BCCA 448.

[8]             He says that at the date of commencement of the action, he had in hand the reports of two medical experts.  The conclusion arising from those is that it was a moderate/severe whiplash injury impacting on his future vocational capabilities, indicating a loss of capacity claim.

[9]             In these circumstances, counsel for the plaintiff contends there was good reason to bring his action in this court as opposed to the Small Claims division of the Provincial Court.

The defence lawyer argued that the Plaintiff should be deprived of ‘costs’ because the Plaintiff only recovered half of what could have been awarded in Small Claims Court therefore the Plaintiff should have started the lawsuit there.
In accepting the Plaintiff’s position Mr. Justice Williams applied the law as follows:

[22]         In order to determine the merit of the plaintiff’s claim for costs, it is necessary to examine whether he has shown that there was sufficient reason to have justified the decision to commence the proceeding in the Supreme Court.

[23]         Both parties accept that to be the correct analysis.  As well, both agree that the point in time at which the assessment is to be made is when the action in initiated.

[24]         In this case, plaintiff’s counsel had in hand the reports of two medical practitioners when he commenced the proceeding.  The report of Dr. Paterson, a treating chiropractor, concluded that the plaintiff’s symptoms of neck pain and stiffness, headaches, left shoulder pain and weakness are the result of a Grade III whiplash (moderate/severe) that he sustained in his July 6, 2006 motor vehicle accident. …

[25] There was also a medical-legal opinion from Dr. Condon….

26] Based on those opinions, it was not unreasonable for the plaintiff’s counsel to conclude that the action should be commenced in the Supreme Court.  The evidence indicated the likelihood of a viable claim for loss of future earning capacity as well as a not-insignificant claim for general damages.  Taking that into account, I am not prepared to find that his decision to bring the claim as he did was improper:  he had sufficient reason to proceed as he did when the writ was filed….

32] In the result, there is no basis to find that he deliberately misrepresented his situation to the doctors.  I stand by my conclusion that there was sufficient reason for bringing this proceeding in the Supreme Court, and reject the argument that he should be disentitled to the benefit of that finding because of his own conduct.

On another note, I posted yesterday about the new BC Supreme Court Civil Rules which come into force next year.   I have referenced these and it appears that the law as set out in Rule 57(10) of the current rules remains in place in the New Rules.  The relevant provision is set out in Rule 14-1(10) of the new Civil Rules.  The language there is identical to the current Rule 57(10) so precedents such as this case should remain good law after the new rules take effect.

The Times They Are A Changin' – Major Overhaul to BC Civil Rules As of July 1, 2010

Written by admin on . Posted in Civil Procedure, Uncategorized. 50 Comments on The Times They Are A Changin' – Major Overhaul to BC Civil Rules As of July 1, 2010

There are major changes coming to the landscape of Civil Litigation in the BC Supreme Court in the coming year.  Today, the BC Government issued a press release advising of a complete overhaul of the BC Supreme Court rules effective July 1, 2010.
These new civil rules have been the source of much controversy since the proposed changes were first announced.
Whatever side of the debate you were on these new rules appear to now be a reality and all lawyers (or people who will represent themselves in the BC Supreme Court) have just under one year to get up to speed.  In fact, Part 24 of the new Rules states that proceedings started under the current Supreme Court Rules will be “deemed to be a proceeding started under these Supreme Court Civil Rules‘ meaning that every current BC Supreme Court civil lawsuit that is not disposed of before July 1, 2010 will be under the force of the new rules at that time.
You can click here to access a copy of the new Civil Rules.
As the new BC Supreme Court Civil Rules were just released today in their final form I will need some time to review them to see what changes they contain with respect to the way ICBC Claims and Personal Injury Claims are prosecuted in the BC Supreme Court.  Over the course of the next year I hope to write extensively about these new rules and the way they will affect personal injury litigation.  In the meantime, according the the BC Government’s Press Release, some of the highlights of these new rules are as follows:

Under the new civil and family rules, the Province will provide up to three days of trial time before litigants are required to pay court fees. Current fees start at $156 for a half day or less. To encourage the use of mediation, court fees for filing or responding to a legal claim will be eliminated for parties that engage in mediation prior to commencing a civil action.

Additional reforms include changes to rules used by B.C.’s civil courts to speed up, simplify and lower the cost of resolving disputes. These include:

· Containing legal processes so that they are proportionate to the value, importance and complexity of the case.

· Allowing parties the option of having a judge set time limits on litigation events.

· Providing a new fast track process that greatly simplifies procedures when the amount in dispute is $100,000 or less or when the case can be tried in three days or less.

· Providing new family rules for minimizing family conflict, promoting co-operation and ensuring that the interests of children are paramount.