Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing the scope of document disclosure when dealing with supplementary reports. In short the Court held the same duties apply to supplemental reports as to ‘original’ reports, namely to identify the documents relied on by the expert in forming their opinion.
In this week’s case (Amini v. Khania) the Defendant’s expert authored a supplemental report without listing all the documents relied on. The Defendant argued the Rules for listing all documents relied on in expert reports do not apply to supplemental reports. Mr. Justice Burnyeat disagreed and in doing so provided the following reasons: [18] The submission of counsel for the Defendants is that it is not necessary in a supplementary report to include a list of every document relied upon by the expert providing a supplementary opinion. I am satisfied that the failure of Dr. Dommisse to list the documents that he relied upon is not “cured” by the provisions of Rule 11-6(7). While it is clear that supplementary reports have a narrow scope and purpose and are only intended to set out where and how a previous opinion has changed in a material way, there is nothing in Rule 11‑6(7) which would allow me to conclude that the filing of a supplementary report can circumvent the clear and mandatory requirements of Rule 11‑6(1)… [21] The very purpose of Rule 11‑6 is that all expert reports should be tendered in a way that neither side can be ambushed or surprised at trial… [23] A supplementary expert report remains an expert report. It must comply with the rules set out in Rule 11‑6(1). Otherwise, the supplementary opinion would be based on unknown facts and assumptions. It would be impossible to give the necessary weight to a supplementary expert opinion as it would be impossible to compare the facts upon which that opinion was based with the findings of fact ultimately made by the Court. The provision of a supplementary report which does not comply with Rule 11‑6(1) should not be used to circumvent the requirement that no party will be caught by surprise by an expert report.
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
When a party serves an expert report in a BC Supreme Court lawsuit opposing parties are entitled to disclosure of any data compiled by the expert in relation to the report. When it comes to neuropsycholgoists reports, the raw test data compiled by neuropsychologists is relevant and disclosable. Sometimes it is difficult to obtain this data as neuropsycholgoists have ethical and contractual considerations limiting how and when such data is to be disclosed. Often neuropsychologists only wish to disclose the data directly to another neuropsycholgist.
Reasons for judgement were released this week by the BC Supreme Court, Vernon Registry (Smith v. Rautenberg), addressing this and concluding that there is no reason why such data is exempt from disclosure under the BC Supreme Court Rules. In ordering the data to be disclosed directly to the litigant Master McDiarmid provided the following reasons: [8] Appendix B to the report documents over 20 tests, particularizes the ability being assessed by some of the tests and gives a result under the heading “Classification” for each of the tests (except the last mood tests). Specific components of some of the tests are set out. [9] A description of the tests in Appendix B are what I would characterize as quite technical. They are the sorts of tests which seem to me would require considerable expertise to both administer and interpret. Clinical psychologists, and in particular clinical neuropsychologists, would probably have the expertise to know whether the administered tests did in fact assess the ability which they purport to assess, and would be able to interpret the data to determine whether or not the interpretation placed on the assessment results by Dr. Pirolli was the proper interpretation. It seems unlikely that the test results could be intelligibly interpreted by persons who did not possess significant expertise in psychology and/or neuropsychology, just from the description of the tests… [34] In making my decision, I agree with what was written by Southin J.A., namely that when an expert in one field in possession of documents says that someone from a different discipline is not competent to understand his work, that the court is to be slow to overrule his judgment. That is a very different thing from saying that the documentation could not be produced to counsel for the party seeking production. If that party choses to have the documents interpreted by someone not competent to understand them, lack of competence will be readily available to a trial judge and will work against the party who conducts litigation in that way. [35] I also respectfully agree that courts must not run rough shod over those who are not parties to the proceedings. That is why the Rules require delivery of notices of applications to non-parties from whom documents are sought. [36] The evidence before Master Horn in Davies was that there was an ethical restriction placed on the neuropsychologist to prevent disclosure. The actual evidence that was presented in that case is not before me. [37] I had evidence before me of the current Code of Conduct. So long as Dr. Pirolli complies with the Code of Conduct, and in particular that portion of the Code of Conduct set out in subparagraph 1.2, reproduced above in para. 28, her ethical requirements are met. [38] The other concerns raised by the plaintiff are dealt with by the litigation privilege which attaches to the documents.
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dealing with this issue. In short the Court held that certain factual observations contained in the report were admissible as they met the ‘necessary and reliable‘ exceptions to the hearsay rule. The opinion evidence, however, was excluded.
In today’s case (Andrews v. Mainster) the Plaintiff had cognitive limitations and these were tested by a neurupsychologiest one year following the collision. The expert died before trial. In admitting the factual portions of the report but excluding the opinion evidence Mr. Justice Pearlman provided the following reasons: [25] I return now to Dr. Kay’s report. Dr. Kay’s report provides the only evidence of a comprehensive neuropsychological evaluation of the plaintiff’s cognitive functioning one year post accident. The necessity requirement is met with respect to those portions of Dr. Kay’s report that deal with his testing and evaluation of the plaintiff’s level of cognitive functioning. I also find that those parts of Dr. Kay’s report that record the history he took from Ms. Andrews, discuss the tests he administered and set out his opinions on the results of his testing of the plaintiff’s cognitive functioning meet the threshold of reliability required for their admission into evidence. Dr. Kay was a neuropsychologist trained and experienced in the use of the standardized tests he administered to the plaintiff. Those tests provide a largely objective measure of the plaintiff’s cognitive functioning. These factors, combined with Dr. Kay’s certification of the duties he owed to the court as an expert provide sufficient circumstantial guarantees of the trustworthiness of this evidence to satisfy threshold reliability. [26] Different considerations apply respecting Dr. Kay’s opinion or diagnosis of post-traumatic stress disorder, his prognosis, and his opinion on the motor vehicle accident as a cause of the plaintiff’s emotional and psychological disorders. Those opinions have a significant subjective component. They are not predicated upon the objective results of his testing of the plaintiff’s cognitive capacity. The nature, extent and sources of the plaintiff’s psychological difficulties both before and after the motor vehicle accident are all in issue in this litigation. There is also a live issue about whether the plaintiff fully disclosed relevant information concerning her psychological condition and the various stressors that affected her from time to time to the counsellors, psychologists and psychiatrists who have treated or examined her. [27] Defence counsel requested production of Dr. Kay’s file, including his interview notes, in order to determine whether it might shed any additional light on the plaintiff’s complex psychological history. The file has not been produced and apparently is not available. Dr. Kay’s report also refers to a diary kept by the plaintiff following the motor vehicle accident, which has not been produced, and to the plaintiff having seen Ms. Tracy Good for counselling for family and relationship issues for 11 years. Ms. Good informed counsel that she has shredded all of her records. If true, that effectively precludes exploration of a potentially valuable source of information concerning the causes of the plaintiff’s emotional and psychological disorders before and after the motor vehicle accident. [28] In light of the subjective nature of the evidence concerning the causes and nature of the plaintiff’s emotional and psychological disorders, and the gaps in the documentary record that I have discussed briefly, I am not satisfied that Dr. Kay’s professional training as a psychologist and the certifications contained in his report provide an adequate guarantee of the trustworthiness of his opinions on these matters to meet the threshold of reliability for their admission into evidence. In the circumstances of this case, there is no adequate substitute for cross-examination of the expert. [29] Further, the test of necessity is not met for Dr. Kay’s diagnosis of and prognosis for the plaintiff’s emotional and psychological disorders. Relevant direct evidence is available from another source. The plaintiff has a comprehensive opinion from Dr. O’Shaughnessy on the nature and causes of the plaintiff’s disorders, their relationship to the motor vehicle accident and their treatment. [30] Accordingly, I conclude that those portions of Dr. Kay’s report beginning at page 20 under the heading “Psychological Explanations” and continuing with the prognosis, opinion and recommendations at pages 21 through 23 do not satisfy the tests of necessity and reliability and are therefore inadmissible. The balance of Dr. Kay’s report, with those redactions, will be admitted into evidence.
In a demonstration that judicial criticism of expert witness ‘advocacy’ is not reserved for so-called “independent” experts, reasons for judgement were released this week addressing the evidence of a treating physician who crossed the line into patient advocacy.
In this week’s case (Brown v. Raffan) the Plaintiff was injured in a motor vehicle collision and sought damages of over $200,000. The Plaintiff provided evidence and also relied on the medical opinion of her physician. The Court rejected much of the claimed damages finding that the Plaintiff was “not reliable” as a witness. The Court went further and criticized her treating doctor finding that the opinions shared with the Court crossed the line into advocacy. In rejecting much of the presented medical evidence Mr. Justice Verhoevan provided the following comments: [66] The plaintiff has continued to be treated by Dr. Campbell, who has seen her more than 70 times since the accident. Unfortunately, in general, I do not consider the evidence of Dr. Campbell to be reliable. There are several reasons for this. [67] Firstly, in my view, Dr. Campbell’s sympathy for his patient and her claims has resulted in him becoming an advocate for the plaintiff. [68] On reading his report and hearing his evidence, the theme that emerges is one of solidarity by Dr. Campbell with Ms. Brown’s complaints about lack of support from ICBC, and her plight as a blameless victim. [69] At numerous instances in the report, Dr. Campbell relates Ms. Brown’s complaints that ICBC failed to refuse to provide for interim wage loss payments, or cost of treatment such as physiotherapy, psychological counselling, or reimbursement for her broken dental plate. Although reciting the plaintiff’s complaints in relation to ICBC might conceivably be relevant background information, it is clear on the report and on Dr. Campbell’s testimony as a whole that he shares his patient’s views that she is a blameless victim of injustice who has been badly treated by ICBC, and, further, that she deserves compensation. [70] In the summary and opinion portions of his report, Dr. Campbell mentions several times that Ms. Brown was “blameless” or “blameless victim” in the motor vehicle accident. Such comments have no proper place in an expert’s report, and indicate a conflict with the duty of an expert to assist the court and refrain from being an advocate for a party as set out in Rule 11-2 of the Supreme Court Civil Rules. [71] Dr. Campbell also mentions several times that the plaintiff has been given no support or treatment by ICBC. These inappropriate comments are thoroughly enmeshed in his report. I think it best to simply set out some extracts of the report in this respect, in which I have emphasized the offending material…. [86] In summary I conclude that, in general, I cannot rely upon the medical report and opinion of Dr. Campbell.
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.
Remember grade school math problems? You needed to not just give your teacher the answer but also show your work. The conclusion without the supporting paper-trail wouldn’t pass muster in Grade 5. The same is true with medical opinions in BC injury trials. It is not enough for a doctor to relate injuries to a collision, the physician must explain the factual basis underlying their opinion. Failure to do so can result in a Court placing little weight on a physicians opinions. This was demonstrated in reasons for judgement released recently by the BC Supreme Court.
In the recent case (Perry v. Vargas) the Plaintiff was involved in a 2006 collision. She sued for damages claiming long-standing injuries with disabling consequences. The Court accepted the Plaintiff was indeed injured but disagreed with the Plaintiff’s assertion of long-standing disability being related to the crash.
In the course of the trial the Plaintiff introduced evidence from her treating physician supporting her position. The Court struggled in giving “much weight” to the physician’s opinion, however, noting that the physician provided “no insight into the reasons for (her) conclusion“. In addressing the lack of reasoning underlying the opinion Mr. Justice Savage provided the following criticism: [56] I find it difficult to give much weight to Dr. Tesiorowski’s opinion with respect to causation. Most of the report appears to simply reiterate what she has been told by others. She was not in fact treating Ms. Perry for the complaints until the passing of Dr. Condon. She only did one physical examination. In the report she does not address any of the intervening events. [57] In my opinion there is another more fundamental problem with Dr. Tesiorowski’s report. There is no reasoning linking the current complaints with the December 4, 2006 Accident. That is, she states a conclusion as quoted above but provides no insight into the reasons for that conclusion. I examine this matter in greater detail below… [122] The report of Dr. Tesiorowski has another important failing. It refers to a history gained from Ms. Perry and others and then simply states a conclusion. To be useful an opinion must be more than a conclusory assertion on causation. In Montreal Light, Heat & Power Co. v. Quebec (Attorney-General) (1908), 41 S.C.R. 116 at 132, Idington J. said “I refuse to accept unless absolutely necessary the mere ipse dixit of any expert when presented for my acceptance merely as an act of faith, and without the aid of such reasons as his reasoning power, or means of, and result of the use of means of, observations may have developed”. [123] The same kind of concern is noted by Binnie J., speaking for the court in R. v. J.-L.J., 2000 SCC 51 at para. 56, [2000] 2 S.C.R. 600. The opinion must assist the trier of fact to form an independent conclusion by “an act of informed judgment, not an act of faith”: 56 In Mohan , Sopinka J. held that the expert evidence in question had to be more than merely helpful. He required that the expert opinion be necessary “in the sense that it provide information, which is likely to be outside the experience and knowledge of a judge or jury, … the evidence must be necessary to enable the trier of fact to appreciate the matters in issue due to their technical nature” (p. 23). In Béland , supra , McIntyre J., speaking about the inadmissibility of a polygraph test, cited at p. 415 Davie v. Edinburgh Magistrates, [1953] S.C. 34 (Scotland Ct. Sess.) , at p. 40, on the role of expert witnesses where Lord Cooper said: Their duty is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence. [Emphasis added.] The purpose of expert evidence is thus to assist the trier of fact by providing special knowledge that the ordinary person would not know. Its purpose is not to substitute the expert for the trier of fact. What is asked of the trier of fact is an act of informed judgment, not an act of faith. [124] As there is no reasoning linking the facts referenced in the medical report with the conclusory assertion on causation, I am unable to form an independent conclusion from this opinion. To accept the opinion would simply be a leap of faith, applying the logical fallacy of ipse dixit, in this context, “because she said it”. [125] For all of these reasons Dr. Tesiorowski’s opinion is of little assistance to the court.
In my continued efforts to highlight unreported injury law decisions of the BC Supreme Court, reasons for judgement were recently provided to me addressing the qualifications of a chiropractor to opine on injury causation and prognosis. This unreported case is a little dated (from 2008) however the discussion is of value and I am happy to publish the decision here.
In the recently provided case (Sloane v. Hill) the Plaintiff was injured in a collision. She sued for damages and proceeded to jury trial. In the course of the trial the Defendant objected to the qualifications of the Plaintiff’s chiropractor arguing that a “chiropractor has no basis in training or expertise” to offer opinions regarding diagnosis and prognosis for traumatic injuries. Mr. Justice Grist disagreed and allowed the chiropractor to be qualified as an expert. In doing so the Court provided the following reasons: [5] Chiropractors are licenced to provide this form of care, and there is no indication that chiropractors are generally incompetent in what they do or, in particular in the process of forming diagnosis and prognosis. If nothing else here, the forecast for the future ties to what the chiropractor expects to be the future cost of performing her services… [6] The chiropractor will testify and will be subject to cross-examination… [8] The admissibility of an expert’s report is dealt with in R v. Marquard [1993] SCJ No. 119 (SCC). At issue is the witness’s ability, through experience and training, to aid the triers of fact in opinion based on special training or experience; opinion the triers are not likely to be able to form on their own. [9] Here, I think the chiropractor does offer something towards this end. Further, through cross-examination and with the medical evidence to be called, I think there will be ample opportunity for counsel to put the opinion in proper perspective, and there is little likelihood of prejudice. I think the public is well-acquainted with different healthcare providers, what they can offer and their limitations. [10] On balance, I am of the view these opinions can be taken in evidence.
As always I am happy to provide a copy of the full transcript of this unreported decision to anyone who contacts me and requests one.
In my continued efforts to track judicial comments addressing expert witness advocacy, reasons for judgement were released last week by the BC Supreme Court, Cranbrook Registry, dismissing an application for a defence medical exam where the proposed examiner wrote a previous report that, in the Court’s view, “border(ed) on advocacy“.
In last week’s case (Moll v. Parmar) the Defendant sought to have the Plaintiff examined by a neuropsychologist. Prior to the proposed exam the doctor wrote a “very vigorous critique” relating to the Plaintiff’s expert’s conclusions. The Court held that, in such circumstances, it is “not appropriate for the court to order a medical examination…by an expert who has previously taken such a strong stance“.
In dismissing this application Mr. Justice Meiklem provided the following reasons: [13] Turning first to the Master’s errors alleged by the appellant, I initially gave rather short shrift to Mr. Harris’ submission that Drs. Craig and Williams had been recruited as advocates for the defence by virtue of the nature of the defence requests to them and the nature and content of their reports, that they should be viewed as lacking the necessary objectivity to warrant being appointed by the court to conduct IMEs of the plaintiff. After considering the retainer letters and the reports of Drs. Williams and Craig, I see considerable merit in the appellant’s argument with respect to Dr. Williams’ compromised objectivity. The circumstances in respect of Dr. Craig’s report are somewhat different. [14] The appellant’s concern was not only the advocacy bias apprehended by the plaintiff, but also the bias concerning the plaintiff’s condition that was already demonstrated by the roles these experts were retained for and the reports they had already delivered. He considered it highly improbable and purely theoretical that either of these specialists would be able to change any previously expressed views after their examinations of the plaintiff. [15] Dr. Williams’ report emanated from a retainer letter wherein the pertinent paragraph stated simply that Mr. Moll was advancing a claim for a head injury in a highway collision and then stated: “I ask that you please kindly review the enclosed report of Dr. Jeffrey Martzke dated May 1, 2012, together with the enclosed documentation set out in the attached schedule “A”, with a view to discussing Mr. Moll’s claim with me.” The letter promised to forward Dr. Martzke’s raw test data, which was forwarded in due course and reviewed by Dr. Williams. [16] Dr. Williams described the purpose of his report as responding to the reports of Dr. Martzke and Dr. Wallace (the plaintiff’s vocational consultant) and he said he limited his comments to aspects pertaining to the methods, procedures and process of the reports, as well as the sufficiency of the conclusions recommendations or diagnoses of Drs. Martzke and Wallace. [17] Dr. Williams’ report is, however, a very rigorous critique of Dr. Martzke’s methods and testing, as well as his conclusions, and in my view does at least border on advocacy, as argued by Mr. Harris. Dr. Williams’ criticisms of Dr. Martzke’s report and findings may well be found to be completely correct, and my comments will not fetter the trial judge’s rulings if the report is tendered, but I do not think it is appropriate for the court to order a medical examination of a plaintiff by an expert who has previously taken such a strong stance in accepting the role as a reviewer of a previous examiner’s report, particularly in view of the specific provisions of Rule 11-2(1) of the Civil Rules.
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.
