Expert Report Excluded for Tardiness and Credibility Comments
A short but useful analysis was set out in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry, addressing the admissibility of a tardy expert report.
In the recent case (Stanikzai v. Bola) the Plaintiff was injured in a 2007 collision. In the course of the claim the Defendant served a medical report but did so out of the time required by Rule 11-6(3). Mr. Justice Smith declined to exercise his discretion to admit the report under Rule 11-7(6) finding that the report “would not be of assistance in any event” noting the expert’s opinion improperly delves into credibility. Mr. Justice Smith provided the following reasons:
 The opinions of Dr. Caillier and Dr. Yu are not contradicted by any other medical opinion. At trial, the defendant sought to enter a medical report from an orthopedic surgeon, Dr. Ponsford, that had not been served within the 84 day notice period required by Rule 11-6(3). I declined to exercise my discretion to shorten the required notice period and admit the report, largely because I found it would not be of assistance in any event.
 The essence of Dr. Ponsford’s opinion was that he was unable to provide a firm medical opinion because of what he regarded as inconsistencies and contradictions within the plaintiff’s history. Credibility is, of course, a matter for the court, not the expert witness.
Advocacy in the Guise of Opinion, Mr. Justice Smith, Rule 11, Rule 11-6, Rule 11-6(3), Rule 11-7, Rule 11-7(6), Stanikzai v. Bola