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:
 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.
 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).
 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…
 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
Tag: Rule 5-3(1)
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.
Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, dealing with the limits of the Court’s power to order litigants to reveal which experts they may rely on at trial.
In the recent case (Amezcua v. Norlander) the Plaintiff was injured in two separate collisions. The first took place some 14 years ago. Commenting on the pace of litigation the Court noted that “the wheels of justice have ground so slowly that at times they stopped“.
The Defendant was apparently not aware of the nature of the injuries the Plaintiff was advancing. An application was brought at a Case Planning Conference seeking the Plaintiff to “confirm which experts and expert reports it plans to rely on at trial“. The Defendant argued that the Court can make such an order under Rule 5-3(1).
Master Baker noted that such an order would infringe on litigation privilege. The Court did, however, order an accelerated date for the Plaintiff to serve his expert reports noting the slow pace of litigation. Master Baker provided the following reasons:
As I said above, the defendant Taylor asks for an order that the plaintiff “…confirm which experts and expert reports it plans to rely on at trial”. In Galvon v. Hopkins, Kloegman J. declined to order that a party name a neurologist consulted by the party, along with the date of the appointment, or to advise of the names of subsequent experts or the dates of their appointments. After considering several authorities, she concluded:
I do not see anything in Rule 5?3 governing case planning conferences that clearly, expressly, and specifically allows the presider to compel a party to provide another party with the details of any potential expert witnesses before that party has even consulted with the expert or made an election whether to call the witnesses’ evidence at trial.
Rule 5-3 does have clear and express provisions respecting experts: Rule 5-3(1)(k) permits the Court to direct the appointment of joint experts, to order that they consult, to limit the number of experts, to set dates for service of experts’ report (i.e. other than those set by Rules 11-6(3) and (4)), or to direct what issues upon which they may be called. But none of these (other than by advancing the service date for reports) requires that a party disclose either the expert’s identity, or the area of his or her expertise before serving the report.
Rule 5-3(1)(k) is not inconsistent, in my view, with the reasoning in Galvon. The disclosure aspects of that Rule assume that evidence has been gathered, assessed, and considered essential to a party’s case. The only question remaining then is when it will be disclosed, thus Rule 5-3(1)(k)(iv), permitting service dates other than those provided by Rule 11-6. It is important and instructive to note the court’s reference to “potential” expert witnesses; it seems to me that Kloegman J. was concerned with protecting litigation privilege during the evidence-gathering phase, so that the party assembling his or her case is free to do so without the requirement of disclosing experts (or, I conclude, directions) that may prove fruitless and avoid adverse inferences.
The defendant Taylor’s request, however, comes within Rule 5-3(1)(k) and does not ask the name or expertise of potential witnesses, but rather the details of the experts it will rely on at trial.
This case, as I have mentioned, has an extraordinary aspect. The first accident occurred approximately 13 years ago. Such delays sometimes occur when, for example, the plaintiff is an infant. That is not the case in this situation. The defence is justified in its frustration and perplexity in not knowing, in any reliable way and after 13 years, the nature or extent of medical injuries suffered by the plaintiff. That being the case, the plaintiff is ordered to deliver the reports of experts upon which she intends to rely at trial, no later than November 1, 2012.
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing the scope of appropriate applications at Case Planning Conferences and further the prohibition of affidavit evidence in this venue.
In today’s case (Gill v. A&P Fruit Growers Ltd.) the Plaintiff was injured in a 2004 slip and fall incident. The Defendant was found 70% at fault for this incident.
As the damages trial neared the Plaintiff brought an application to allow him to introduce evidence from two physicians by way pre-trial deposition. The Defendant opposed arguing this order should not be made and further that such applications should not be heard at a Case Planning Conference. Mr. Justice Willcock disagreed and provided the following feedback about the scope of CPC applications:
 There is still some uncertainty with respect to the scope of the prohibition against hearing applications supported by affidavit evidence on a case planning conference. In order to effect the objectives of the Rules by making orders designed to resolve disputes efficiently and in a cost-effective manner on the merits, in my view, it will occasionally be necessary to rule on the manner in which evidence will be adduced at trial. In some circumstances, even when such matters are hotly contested, they may be determined without affidavit evidence. That may be the case where the issue may be determined on the basis of representations of counsel as officers of the court.
 It has long been the case that the courts have given evidentiary weight to the representations of counsel with respect to evidence to be called at trial, availability of witnesses and procedural questions going to trial management. In Nichols v. Gray (1978), 9 B.C.L.R. 5 (C.A.), the Court of Appeal reaffirmed a chambers judge’s discretion to give weight to statements of counsel relating to the evidence and the conduct of trial. It is in that context that the new Supreme Court Rules were enacted. The prohibition against hearing applications supported by affidavit evidence must be interpreted in the light of that practice.
 I adopt as applicable to case planning conferences the views expressed by N. Smith J. in Jurczak v. Mauro, 2011 BCSC 512, and by Gray J. in Enns v. Cahan, 2011 BCSC 54, in addressing the similar provision in the trial management rule prohibiting the granting of orders requiring affidavit evidence: that it is for the trial management judge to decide whether a particular application requires affidavit evidence and whether any affidavits that have been tendered are relevant.
 In the case at bar, as in Jurczak, the evidence in the affidavits that were before me added nothing to the submissions of counsel and counsel’s advice to the court with respect to matters that ought to be canvassed at a case management conference, specifically the witnesses availability for trial and the importance of cross-examination of those witnesses to the defence case. The affidavit evidence that I would have to weigh on the application was like that described in para. 14 of the judgment in Jurczak:
 All of that relates to matters of evidence that counsel expected or wanted to put before the trial judge, the availability of that evidence, and the readiness of the defendant to proceed to trial. Those are matters of which counsel are expected to advise the court at the TMC and the court is, of course, entitled to assume counsel’s statements are true. Affidavits in which their legal assistants simply say the same thing about these procedural matters are of no further assistance.
 The enumeration of orders that may be made at a case planning conference is exhaustive but Rule 5-3(1)(k) confers a broad discretion on the case planning judge to make orders respecting expert witnesses and Rule 5-3(1)(v) confers a broad discretion to make any order that advances the objectives of the Rules. The judicial exercise of these discretionary powers requires that some consideration be given to the nature of the orders more specifically enumerated in Rule 5-3. The Rules contemplate active judicial management of litigation and, in particular, judicial regulation of the role of expert witnesses at trial. The Rules require that case planning and trial management be conducted with an eye to efficiency and the proportionality of the expense of the process to the value, importance and complexity of the matters in issue. In my view, an application for an order that expert witnesses be deposed before trial rather than testifying by a video conference at trial is clearly an order of the type that may be made at a case planning or trial management conference, if the factual matrix necessary for making such an order can be established. Such an order is in the nature of the procedural orders enumerated in Rule 5-3.
Reasons for judgement were recently released by the BC Supreme Court, Vancouver Registry, appointing a joint expert witness against the wishes of a Defendant in an on-going legal dispute. Although this recent case is not a personal injury claim I summarize the findings because it is the first case I’m aware of appointing a joint witness in a contested application under the ‘new’ BC Supreme Court Civil Rules.
In the recent case (Leer and Four L. Industries v. Muskwa Valley Ventures Ltd.) the Plaintiff and Defendants had a falling out in their commercial dealings. The Plaintiff sued seeking an order that the Defendant “purchase his shares at fair market value“. At a Case Planning Conference the Plaintiff sought an order that a joint business valuator be appointed to value the shares. The personal Defendant “vigorously oppose(ed)” the idea of a joint expert.
Ultimately Master Scarth granted the order and in doing so provided the following useful comments of general interest in applications for joint experts:
 Rule 5-3(1)(k)(i) provides that at a case planning conference, a judge or master may order that expert evidence on any one or more issues be given by one jointly-instructed expert. Given the prohibition in Rule 5-3(2)(a) against hearing an application supported by affidavit evidence at a case planning conference, the court is required to rest any exercise of discretion on the pleadings and submissions to the extent that they do not require recourse to affidavit evidence: Przybysz v. Crowe, 2011 BCSC 731 at para. 59; Vernon v. British Columbia (Liquor Distribution Branch), 2010 BCSC 1688; and Jurezak v. Mauro, 2011 BCSC 512 – considering Rule 12-2(11)…
 Rule 11-3 was recently considered in Benedetti v. Breker, 2011 BCSC 464. Master Baker noted that while joint experts are not new to litigation in British Columbia, the new rules clearly have brought greater focus and emphasis to the appointment of joint experts and invite wider application of that process: paragraph 11…
 The personal defendants object to paying for expert evidence which is part of the plaintiffs’ case. Why should they pay for a report which the plaintiffs require? The answer is because it is a proportionate way to conduct this proceeding.
 Read together with Rule 1-3 which sets out the object of the rules, Rule 11-3, like joint expert rules in other jurisdictions, is intended to reduce litigation costs and promote the conduct of a proceeding in ways consistent with the amount involved. While in this case, the amount at issue is not yet resolved and will not be until an opinion has been obtained, the buyout of Royer in 2009 gives some indication that the amount is likely modest. In such circumstances, proportionality suggests that an effort should be made to avoid duplication of the costs of obtaining an expert report which is the likely outcome if a joint report is not ordered.
 It follows that the parties are required to share the cost of the expert, at least at the outset. The ultimate determination as to costs is for the trial judge.
 I will add that a report as to value may benefit all parties in another way. The value of Leer’s shares has been an issue and a topic of discussion between the parties since 2009, when the personal defendants offered him a buyout. A valuation will provide the parties with the information required to settle this longstanding dispute, and may promote that result.
 I conclude that it is appropriate to exercise my discretion in favour of the plaintiffs and to make the order set out in Rule 5-3 that expert evidence as to valuation of Leer’s shares be given by a jointly appointed expert.
Further to my recent post on this topic, the law regarding the Affidavit Prohibition at Case Planning Conferences and Trial Management Conferences appears to be taking shape. Useful reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, taking a common sense approach to this prohibition.
In this week’s case (Enns v. Cahan) the Plaintiff sued for damages under the Family Compensation Act. A trial management conference was held and the Defendant brought an application to strike the Plaintiff’s Jury Notice. The Defendant did not provide any affidavits in support of his application relying only on the pleadings and an expert report which was intended to be introduced at trial. The Defendant argued the case was too complex for a jury.
The application was dismissed with Madam Justice Gray finding that the case could appropriately be heard by a Jury. Prior to making this finding the Court provided the following useful reasons about when it’s appropriate for a contested application to be heard at a TMC given the affidavit evidence prohibition:
 Rule 12-2(11) provides that:
(11) A trial management conference judge must not, at a trial management conference,
(a) hear any application for which affidavit evidence is required, or
(b) make an order for final judgment, except by consent.
 Mr. Brun, Q.C., argued on behalf of Mr. Cahan that his application could proceed without affidavit evidence and on the basis of submissions by counsel alone. Mr. Brun provided the Court with a copy of the Bruce-Aldridge report and seeks to rely on that and the statement of claim as the basis for his application. Mr. LeBlanc argued on behalf of Mr. Enns that Mr. Cahan’s application requires evidence and that it is therefore one of the prohibited orders set out in Rule 12-2(11).
 The new Rules include Rule 1-3 as follows:
(1) The object of these Supreme Court Civil Rules is to secure the just, speedy and inexpensive determination of every proceeding on its merits.
(2) Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far as is practicable, conducting the proceeding in ways that are proportionate to
(a) the amount involved in the proceeding,
(b) the importance of the issues in dispute, and
(c) the complexity of the proceeding.
 The new Rules have procedures which enable the court and the parties to design the procedure necessary to resolve a particular issue which is in question. The question of whether an application requires affidavit evidence will not always be determined by what remedy is sought. The question of what is in dispute will play a role, as well. In this case, Mr. Brun’s submissions are based on the Bruce-Aldridge report and the statement of claim. It is not necessary to require the parties to go to the trouble and expense of preparing affidavits when counsel can simply provide the court with a copy of the report in question and the pleadings.
 In my view, requiring affidavit evidence would not be consistent with the object of securing the inexpensive determination of every proceeding on its merits. Here, counsel agree that the Bruce-Aldridge report was tendered by Mr. Enns as a report he intends to rely on at trial as an expert report. As I have said, that report, together with the statement of claim, form the basis of Mr. Brun’s submissions. As a result, Mr. Cahan’s application can proceed as an application before the trial management judge.
Late last year reasons for judgment were released by the BC Supreme Court finding that Trial Management Conferences and Case Planning Conferences “are not generally the forum to determine contested applications.” . Reasons for judgement were released this week by Mr. Justice Smith taking a less restrictive view of this issue.
In today’s case (Jurczak v. Mauro) the Plaintiff was injured in a motor vehicle collision. As trial neared the Plaintiff brought an application for an adjournment and this was granted in order to give the Plaintiff time to gather appropriate medico-legal evidence. The Court was specifically asked whether it was permissible for contested applications to be heard at TMC’s. Mr. Justice Smith held that such practice was permitted under the Rules. The Court provided the following reasons:
 At a Trial Management Conference (TMC) on March 31, 2011, I made an order adjourning the trial in this matter, which had been set for May, 2, 2010. I indicated that I would provide written reasons because the application raised a procedural question about the circumstances under which a judge at a TMC may hear and rule upon a contested adjournment application.
 The TMC was created by the new Supreme Court Civil Rules, B.C. Reg. 168/2009 that came into effect on July 1, 2010. Rule 12-2 (9) sets out a broad range of orders that can be made by the presiding judge at a TMC “whether or not on the application of a party.” These include, at subparagraph (l), an order adjourning the trial. However, Rule 12-2 (11) prohibits a TMC judge from hearing an application for which affidavit evidence is required…
 I do not understand Vernon to be suggesting that a judge at a TMC can never order an adjournment if one party objects. No such restriction appears in Rule 12-2. The Rule prohibits hearing applications that require affidavit evidence. It is for the judge to decide whether a particular application requires affidavit evidence and whether any affidavits that have been tendered are relevant.
 The orders permitted by Rule 12-2 (9) are, broadly speaking, procedural in that they deal with the conduct of the trial, including how certain evidence is to be presented, the length of the trial and, in subparagraph (q), “any other matter that may assist in making the trial more efficient.”
 Rule 12-2 (3) requires the parties to file trial briefs in Form 41 identifying the issues in dispute (which, by that stage, may not be all of the issues raised in the pleadings), listing the witnesses, including experts, to be called and estimating the time necessary for the evidence of each witness. The trial brief is an unsworn statement of counsel or the self-represented party. The Rule clearly contemplates that the judge will make orders based on the information contained in the trial briefs, as supplemented by what is said at the TMC. That is the only basis on which the orders permitted by the Rule could be made.
 In some cases where an adjournment, or any other order is sought, a judge may decide that supporting information is not adequate. That was the situation in Vernon, where Goepel J. was presented with an affidavit of the plaintiff setting out the prejudice that would flow from an adjournment. That evidence had to be weighed against any evidence of prejudice to the defendant if the adjournment was not granted. Once the plaintiff’s affidavit was found to be relevant, evidence in proper form was required from the defendant and counsel’s statements, standing alone, were not acceptable.
 However, there are situations where the need for an adjournment can be clearly assessed on the basis of information provided at the TMC and affidavit evidence would be of no assistance. For example, a judge may be able to determine simply from the trial briefs that the trial cannot possibly be completed in anything close to the estimated time, or that the number of pre-trial matters still to be dealt with shows that the case is not ready for trial. If the judge could not order an adjournment in those circumstances, a large part of Rule 12-2’s purpose would be defeated….
 In summary, the fact that the adjournment application was contested would not, in itself, have prevented me from hearing and deciding it at the TMC. In the circumstances, affidavit evidence was not necessary. I had jurisdiction to consider the adjournment application on the basis of information in the trial briefs and the statements of counsel at the TMC and I would have made the same decision had the matter proceeded on that basis.
Can the BC Supreme Court order that parties use a joint expert in a personal injury trial against the wishes of one of the parties? Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing this question.
In today’s case (Benedetti v. Breker) the Plaintiff was involved in a 2005 collision. He was 17 at the time and allegedly sustained a brain injury with psychiatric consequences. The Plaintiff brought an application asking that the Court order that Dr. O’Shaugnessy be appointed as a joint expert in the lawsuit. The Defendant objected to having a joint expert. Master Baker dismissed the motion and in doing so found that the Rules of Court do not permit a joint expert to be appointed over the objection of a party unless its done at a Case Planning Conference. The Court provided the following reasons:
 Jointly appointed experts are not new to litigation in British Columbia. In the family law context section 15 of the Family Relations Act has, for over 30 years, provided for the appointment of experts to investigate and prepare custody and access reports. Realty appraisers are also often jointly appointed and instructed in family proceedings. It is not all that unusual to encounter jointly-instructed experts in construction disputes. But the new Rules clearly have brought greater focus and emphasis to the appointment of joint experts and invite the wider application of that process.
 Having said that, I agree with Mr. Nugent that this application does not follow the correct procedure for such an appointment. He is correct in his analysis and that the only provision in the new Rules for the appointment of a joint expert over the wishes of one or both of the parties is in Rule 5-3(1)(k)(i), authorizing the presiding Judge or Master to order
that the expert evidence on any one or more issues be given by one jointly-instructed expert
Rule 11-3, he correctly argues, only permits the court to direct who that expert will be, or other terms ancillary to the appointment. Rule 11-3 assumes that either the parties have agreed to the concept of a joint expert, or that the court has already ordered one in a CPC. Neither of those assumptions apply in this case.
 It is not for me to theorize the reasons behind Rule 11-3’s current form, or why the only provision for the court, of its own volition, to appoint a joint expert is found in the CPC rule. Suffice it to say and conclude that the Attorney General’s Rules Revision Committee’s purpose and the legislative intent was to separate the aspects of the appointment accordingly and to leave the court appointment process in the less formal CPC procedure.
 Even if the authority did lie in Rule 11-3, however, I agree further with Mr. Nugent that it would not be an appropriate order in this case. This jurisdiction is blessed with a choice of numerous medical legal experts who could function as a joint expert in this matter. By no means is Dr. O’Shaughnessy the only suitable choice as joint expert. To appoint him, however, is to deprive the defence of a significant or potentially significant trial stratagem. Wilson, C.J.S.C. in Milburn et al v. Phillips long ago described the purpose of an IME: “…to put the parties on a basis of equality” or, as it is commonly offered in chambers, to level the playing field. The plaintiff has received treatment from at least two psychiatrists and has seen a neuropsychologist (par. 3, above). The former were, to be sure, treating physicians, but it is not clear whether the latter was for treatment or for medical-legal consultation. Given these facts, the defence should not be deprived of unilateral access to the one psychiatric expert that it chose and notified some 15 months before this application.
 The accompanying argument also has merit: should Dr. O’Shaughnessy’s conclusions not assist the defence, counsel can instruct him to not prepare a report. In such an instance Dr. O’Shaughnessy’s objective observations, test results, or the like may well be discoverable but he would not be obliged to give or disclose his opinion to the plaintiff. This is an important tool in the defence toolkit and should not be casually ignored.
 Finally, while proportionality is a laudable goal and should factor into all decisions under the Rules, in this case I doubt its applicability. With five medical reports (privileged to date, recall) with the plaintiff, it seems unlikely that proportionality will be served by directing that a sixth, that of Dr. O’Shaughnessy, be a joint report.
 For these reasons the application is dismissed.
(Note: this area of law is still developing, for a further case addressing this issue click here)
Two of the biggest changes under the New Supreme Court Rules are the introduction of Case Planning Conferences and mandatory Trial Management Conferences (CPC’s and TMC’s).
The New Rules give the Court significant powers to make various orders with respect to the conduct of lawsuits at these hearings. Interesting reasons were recently brought to my attention addressing the limit of the Court to address contested matters at CPC’s and TMC’s.
In the recent case (Vernon v. British Columbia (Liquor Distribution Branch)) the Plaintiff sued the Defendant for wrongful dismissal. As the lawsuit progressed the parties attended a Trial Management Conference. At the TMC the Defendant asked for various orders including an adjournment of the upcoming trial and a partial publication ban of the trial. These applicaitons were contested by the Plaintiff. Mr. Justice Goepel dismissed the applications finding that TMC’s and CPC’s were inappropriate forums for contested applications. The Court provided the following reasons:
 The issue in this case is whether counsel’s statements provide a sufficient evidentiary foundation for the orders that the defendant seeks. The applications for an adjournment and a publication ban both require the exercise of judicial discretion to consider competing interests. In the case of the adjournment, the contest is between the defendant’s need for additional time to prepare its case and the potential prejudice to the plaintiff if the case is adjourned. With regard to the publication ban, the court must weigh the salutary effect
 The adjournment and publication ban applications both require a proper evidentiary foundation. Statements of counsel alone are not sufficient. To paraphrase Lambert J.A. in Nichols, where statements of counsel stand alone, it will be a rare case that such statements will be sufficient to justify a finding of fact that would permit the exercise of judicial discretion. This is not such a case.
 While CPCs and TMCs have a role to play in the orderly progress of litigation, they are not generally the forum to determine contested applications. Such applications will usually require affidavit evidence and pursuant to the provisions of Rule 12-2(11) and 5-3(2) applications requiring affidavit evidence cannot to be heard at such conferences. In this case affidavit evidence is necessary to determine the defendant’s applications for an adjournment and a publication ban. Those applications cannot be heard at a TMC.
 This is not to say that a judge cannot make orders at a CPC or a TMC. Clearly, a judge can. Many of the orders contemplated at such a conference will not require applications or affidavit evidence. The Rules allow a judge to make an order absent an application. Many of the orders suggested in the respective rules are procedural in nature and more in the nature of directions. Such orders can be based on the representations of counsel. An example is the present application concerning the order of proceedings at trial.