In the first case I have seen addressing this issue, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, striking out language in correspondence between lawyers as an abuse of process.
In today’s case (Walker v. Doe) the Plaintiff objected via letter sent to Defence counsel to the admissibility of Defense expert reports, and as part of the “boilerplate” objections Plaintiff’s counsel noted that “we shall seek sanctions personally against [expert’s name], including but not limited to special costs“.
In finding that the Rules of Court allow a Judge to strike out language in such a letter Mr. Justice Butler reasoned as follows:
 Letters sent by counsel to provide notice of objection to the admissibility of an expert report are required to be served pursuant to R. 11-6(10). The notice must set out “any objection to the admissibility of the expert’s evidence that the party receiving the report … intends to raise at trial.” The notice required by the Rule is a document mandated by the Rules in which a party must set out their position for trial.
 Rule 9-5(1) is not limited to pleadings but also applies to petitions and “other documents”. Document is defined in R. 1-1(1) in broad terms. There is no doubt the notice required under R. 11-6(10) is a document pursuant to that definition. However, the word must be interpreted ejusdem generis in the context of the phrase, “pleading, petition or other document”. Applying that aid to interpretation, I conclude that “other document” refers to documents which are required by the Rules to formally set out a party’s position, claim or defence. The notice under R. 11-6 (10) is such a document.
In finding the costs threat amounted to an abuse of process the Court provided the following reasons:
 In conclusion, expert witnesses play an important role in the litigation process. When an expert is properly qualified within an area of expertise and the expert’s opinion evidence, which is not otherwise excluded, meets the essential criteria of relevance and necessity in assisting the trier of fact, it can be admitted to assist the court: R. v. Mohan,  2 S.C.R. 9. The Rules establish a process which provides adequate notice of expert opinions and sets up a way to challenge admissibility. There is no need to introduce into the process, by way of boilerplate language in notices under R. 11-6(10), threats of claims against experts for special costs. As I have already noted, it is entirely unnecessary. Further, it has the potential to frustrate the litigation process because it may discourage the participation of expert witnesses. In addition, and contrary to the intent of the new Rules, it would seem to place the expert in an adversarial position.
Reasons for judgment were released this week by the BC Supreme Court, Vancouver Registry, addressing a technical procedural issue, namely which judge should address a costs application following a mistrial.
In this week’s case (Walker v. Doe) the Court declared a mistrial on the 14th day of a Jury trial following closing submissions of counsel for the plaintiff. The Defendant sought costs and an issue arose about who was best to address this, the presiding judge for the initial trial or the judge who would ultimately oversee the mistrial. The Court held it was appropriate, in the circumstances of this case, for the initial judge to address the costs issue. In reaching this conclusion Mr. Justice Voith provided the following reasons:
 The broad question of whether there is a “longstanding practice” in this province that directs that the costs arising from a mistrial should be assessed by the ultimate trial judge misses an important aspect of the particular issue before me. The issue on this application is not, as the Response filed by the plaintiff suggests, whether “[t]he allocation of costs thrown away as a result of the mistrial should be in the ultimate cause or decided by the judge before whom the case is ultimately tried”.
 The real issue, instead, is who should hear an application for costs, following a mistrial, when the dominant focus of that cost application is an order for special costs against counsel for the party that caused the mistrial. The fact that the dominant, if not overwhelming, focus of the defendant’s application is an order for special costs against counsel is patent from the submissions of the parties as well as from the materials and authorities that each has filed…
 The benefit of having the judge who heard the trial and counsel’s submissions which gave rise to a mistrial, also hear the ensuing special costs application is obvious. In Cunningham v. Slubowski, 2004 BCSC 1204, Madame Justice McKenzie, as she then was, following a 20 day trial, heard an application for costs, including special costs, against counsel. She observed:
 This trial was difficult for all concerned. Ms. Wellburn provided me with valuable assistance on this hearing. She made a valiant effort to grasp the course of the proceedings, but had the disadvantage of not having been counsel at trial. Counsel ordered a few transcripts of the proceedings, but I decided on 7 May 2003, on counsels’ request, that full transcripts were not justified by the expense. As the trial judge, I had the unique position of assessing the course of the proceedings at trial. My recollection remains vivid and, as referred to above, I have considered all the voluminous material filed on this application.
 The foregoing comments are apposite. Notwithstanding the passage of time, my memory of the trial and of the matters leading to the mistrial remains good. My memory of many events remains vivid. Counsel for Mr. Walker sought to argue that another judge, with the benefit of transcripts and the Mistrial Ruling, would be in an equally good position to address the instant application. I do not think that this is so…
29] I do not consider that another trial judge could address such submissions as readily or as easily as I could. This is so even if extensive transcripts from the first trial were ordered…
 I consider that the foregoing considerations remove this application from the ambit of the “general rule” referred to in Joy and that I should hear the defendant’s application.
 I have also considered whether, having arrived at the foregoing conclusion, I should defer dealing with the substance of the application until after the appeal of the Mistrial Ruling. This would have the benefit of avoiding the costs that would be incurred in hearing the application and that would be wasted if the plaintiff is successful in its appeal of the Mistrial Ruling or, indeed, from these reasons. Conversely, if the Mistrial Ruling is upheld, I expect, having regard to the history of the matter, that any cost order I make will likely be appealed in any event. On balance I consider it better and more efficient to have each of the Mistrial Ruling, these reasons, as well as the eventual reasons from the cost application available before the hearing before the Court of Appeal takes place.
Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, addressing the admissibility of non-exhibit visual aids during closing submissions in a Jury trial.
In the recent case (Walker v. Doe) the Plaintiff sued for damages following a motorcycle collision. During closing submissions the Plaintiff canvassed his claimed damages for wage loss and future care with the help of non-exhibit visual aids. In finding such aids were appropriate Mr. Justice Voith provided the following reasons:
 Counsel for the plaintiff proposes, in his closing submissions, to: (a) develop a bar graph or time line that explains the period of time that each of past wage loss, future wage loss, and the other heads of damage being claimed cover; and (b) visually depict how a future wage loss claim or future care claim should be calculated from the relevant tables that are found in the Civil Jury Instructions.
 In line with MacKenzie A.C.J.S.C.’s reasons in Basi, I have reviewed both Watt’s Manual of Criminal Jury Instructions and the CJC’s model jury instructions. Both seem to confirm that charts or summaries can be used during a closing to help illustrate or explain the evidence, even if they are not made exhibits at trial.
 The purport of the decisions in Bengert, Fimognairi and Basi, moreover, is that trial judges have a wide discretion to permit what aids to the jury they consider are helpful or appropriate.
 Support for this wider discretion is also found in Jones A. Olah, The Art and Science of Advocacy, loose leaf, (Toronto: Carswell, 1990). At 18.8, he writes, unfortunately with no citation other than to another secondary source that I was unable to access:
The use of demonstrative aids that are not part of the trial record, such as blackboards, charts, models, and summaries, is in the trial judge’s discretion. If the evidence provides reasonable foundation for these summaries or charts, then their use should be permitted.
 In this case, subject to the comments I am about to make, I am satisfied that counsel for the plaintiff can proceed as he wishes. The intended use of the “demonstrative aids” that he has described is modest, finite, and would assist the jury in understanding the issues that are before them. This is also consistent with the guidance provided in each of Bengert, Fimognairi and Basi. Still further, my instructions will contain a caution confirming that neither the time line nor the calculations constitute “evidence” before the jury.
I am advised this case is currently under appeal for unrelated reasons. If the BC Court of Appeal addresses this topic I will provide an updated post.
Reasons for judgement were recently shared with me addressing the scope of permissible closing arguments criticizing an opposing expert witness in an injury claim before a jury. In short the Court held that comparing an opposing expert to Johnny Carson’s Carnac The Magnificent crossed the line.
In the recent case (Walker v. ICBC) the Plaintiff sued for damages for serious injuries sustained in a motor vehicle incident. In defending the case ICBC called a professional engineer who provided evidence which contradicted the Plaintiff’s expert. The expert was vigorously cross examined. In closing arguments to the Jury the expert was compared to Carnac the Magnificent. In finding this comment beyond the permissible scope Mr. Justice Voith provided the following reasons:
 The Submission addressed Dr. Toor and his evidence at paras. 78-87 and elsewhere. The attack made on Dr. Toor had at least two components or aspects, each of which was repeated in different ways and each of which was inappropriate. The first was that Dr. Toor, a professional person, was knowingly and intentionally made an object of derision and ridicule. Counsel for the Plaintiff accepted this and did not resile from it. If Dr. Toor’s evidence was ridiculous, he argued, Dr. Toor deserved to be ridiculed…
 The second statement, “although Johnny Carson is dead, the Amazing Karnak lives on”, is inappropriate. The defendant in argument described the Karnac figure as a “wizard buffoon”. Counsel for the Plaintiff agreed. He went on to accept that the Karnac figure was a “ridiculous, turbanned and bejewelled caricature”.
 Earlier during the trial, counsel for the plaintiff had held up a sealed envelope in his hand and began to ask Dr. Toor what was in it. I prevented counsel from proceeding. I did not appreciate at the time, however, that this bit of theatre was intended to presage things to come and to lay the groundwork for counsel’s subsequent submissions. I accept that counsel can be vigorous in its attack on the evidence and qualificaitons of an expert. That attack may well use some “drama and pathos”: Cahoon at para. 18. I do not consider or accept that it should extend to ridicule based on counsel’s belief that a witness’s evidence is ridiculous. It should not depict or describe a professional person, qualified to give expert evidence, as a fool or buffoon based on counsel’s perception of that witness. In this case, the indirect assertion that Dr. Toor was a buffoon was reinforced by the sarcastic tone, again often independently acceptable, which counsel for the plaintiff used in these submissions.
A mistrial was eventually declared. The reasons for judgement are not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.
I am advised this matter is under appeal and will post further on this topic after the BC Court of Appeal weighs in on this issue. Whatever the final judicial outcome addressing the scope of fair criticism, its a safe bet BC won’t mirror New Mexico’s satirical 1995 proposal requiring expert witnesses to dress like wizards while testifying.