Tag: Rule 11-7(6)(b)

"Significant Prejudice" Bars Admission of Late Defence Rebuttal Report

As previously discussed, Rule 11-7(6) allows the BC Supreme Court to admit expert evidence that does not otherwise comply with the Rules of Court.  Reasons for judgement were released last week addressing this discretionary power in cases where prejudiced is caused by the late report.
In last week’s case (Neyman v. Wouterse) the Plaintiff was injured in a 2007 collision.  The Defendant proceeded to trial with only one expert report which was served well outside of the timelines required by the Rules of Court.  The Defendant asked the Court to allow the report into evidence arguing that there would be severe prejudice if the report was excluded as “it is the only medical evidence available to him to tender into evidence“.
Mr. Justice Walker refused to allow the report in finding the Plaintiff would be prejudiced by depriving her adequate time to prepare for cross-examination.  In so finding the Court provided the following reasons:
26]         I am satisfied that plaintiff’s counsel has, through no fault of his own or of his client, not been able to properly consult with his client’s medical experts to determine the answers to those questions. It is also clear to me that standing the trial down for a half day or day or two does not afford the plaintiff and her counsel the opportunity to properly respond to Dr. Bishop’s report, even if it was admitted on a redacted basis.
[27]         In all, I am satisfied, from counsels’ submissions and from the nature of the evidence given by the medical experts to date, that plaintiff’s counsel may well have approached the preparation and prosecution of his client’s case quite differently if he had known that Dr. Bishop’s report was to be admitted…
[32]         As a result of his position concerning terms, which in my respectful view seeks to constrain the outcome of the application to the defendant’s greatest advantage, I conclude that the defendant cannot meet the requirements of Rule 11-7(6)(b).
[33]         Lastly, turning to sub-rule (c), as Savage J. noted in Perry, there must be some “compelling analysis” why the interests of justice require the Court to exercise its discretion to allow the “extraordinary step” of abrogating the requirements of the Rules. None was presented by the defendant in submissions. Moreover, I find that the circumstances of this case, particularly the dilatory conduct of the defendant, do not compel me to exercise my discretion under sub-rule (c) to admit Dr. Bishop’s report into evidence without an adjournment on terms. To otherwise admit Dr. Bishop’s report would not be in the interests of justice.
[34]         As a result, the defendant’s application is dismissed. Dr. Bishop’s report will not be admitted into evidence.

Permitting Late Expert Evidence in the Interests of Justice a Remedy to be Used "Sparingly"

Rule 11-7(6) discusses the circumstances when the BC Supreme Court can allow expert evidence to be introduced at trial which does not otherwise comply with the Rules of Court.  Reasons for judgement were released last week addressing this section.  In short the Court held that allowing non-compliant expert evidence to be introduced in the interests of justice is a discretion that “must be exercised sparingly, with appropriate caution, and in a disciplined way“.
In the recent case (Perry v. Vargas) the Plaintiff was injured in a collision.  On the last business day before trial the Plaintiff served a ‘supplementary report’ from her expert which bolstered the experts previous views, clarified statements made in the previous report, and lastly critiqued the defence medico-legal report.s
The Plaintiff argued the late report ought to be admitted as a ‘supplementary report’ pursuant to Rule 11-6(6) or in the alternative the Court should exercise its discretion to allow the non-compliant report in through Rule 11-7(6).  Mr. Justice Savage rejected both of these arguments and in doing so provided the following reasons:
[9]             Rules 11-6(6) (a party’s own expert) and 11-6(5) (a jointly appointed expert) are cognate provisions designed to deal with circumstances where an expert’s opinion “changes in a material way”. Rule 11-6(6) contains an election. In the case of one’s own expert, a party must determine whether it still seeks to rely on the expert report notwithstanding the material change. If it does so, the party must promptly serve a supplementary report.
[10]         Rule 11-6(6) was not intended to allow experts to add either fresh opinions or bolster reasons upon reviewing for the first time or further reviewing material under the guise of there being a material change in their opinion. To provide otherwise would surely defeat the purpose of the notice provisions contained in Rules 11-6(3) and 11-6(4) and the requirement of R. 11-7(1)…
[18]         Rule 11-7(6)(b) focuses on whether there is prejudice to the party against whom the evidence is sought to be tendered. Of course there are cases where reports are delivered a few days late where there is no prejudice. This is not such a case. Delivering a new expert report without any notice well outside of business hours on a Friday evening before a trial commencing Monday morning places the opposing party in obvious difficulties. In my view there is some prejudice to the defendants given the untimely delivery of the Late Report.
[19]         More generally, delivering expert reports on the eve of trial is antithetical to the purpose of the Rules regarding expert reports, which seek to ensure the parties have reasonable notice of expert opinions. Compliance with the Rules allows considered review of the expert opinions, the obtaining of important advice, and possible response reports. Under the former Rules, in Watchel v. Toby, [1997] B.C.J. No. 3150, 33 M.V.R. (3d) 115, Kirkpatrick J., as she then was, excluded in its entirety a late report delivered 12 days before trial where there was insufficient time to obtain any opinion evidence to answer the report.
[20]         Rule 11-7(6)(c) allows the court to admit expert evidence in the interests of justice. It is a separate provision so it can apply in circumstances where the relaxing provisions of Rules 11-7(6)(a) and (b) are not met. Effectively, it provides that the court retains a residual discretion to dispense with the other requirements of R. 11.
[21]         Context here is all important. This is the second scheduled trial. There was a trial management conference with comprehensive trial briefs prepared by both counsel.
[22]         In my view the discretion provided for in R.11-7(6)(c) must be exercised sparingly, with appropriate caution, and in a disciplined way given the express requirements contained in Rules 11-6 and 11-7. That is, the “interests of justice” are not a reason to simply excuse or ignore the requirements of the other Rules. There must be some compelling analysis why the interests of justice require in a particular case the extraordinary step of abrogating the other requirements of the Supreme Court Civil Rules. None was provided.
[23]         In the circumstances, the Late Report is not admissible.

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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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