We will review a “No evidence” application to the Court by the Defendant in this recent decision. The question to be determined is whether expert evidence is required to prove a standard of care and breach of a standard of care? There are differing views on this important question and our article today will review the test, the issue, the elements that must be proved by a Plaintiff in a negligence claim and the analysis and conclusion of the Court. We will also identify all of the referenced cases for and against the argument that expert evidence is required.
Is expert evidence required to prove a standard of care and breach of a standard of care?
There are differing views on this important question. We will review the case law and review what evidence is necessary to prove the requisite standard of care and breach of the standard of care.
The test on a no‑evidence motion is whether the plaintiff has failed to adduce evidence on which a properly instructed jury, acting reasonably, could find for the plaintiff.
The question is whether there is any evidence supporting the claim. Put differently, there must be no evidence on an essential ingredient of the case such that any judgment for the plaintiff would be wrong in law.
The four elements that a Plaintiff must prove to establish a claim in negligence are:
- That the defendants owed a duty of care to the plaintiff.
- That each of the defendants breached that duty of care in that they failed to meet the standard of care required of a reasonably prudent “physician” in the same circumstances.
- That the plaintiff suffered damages.
- That the defendants’ breaches caused the plaintiff’s damage.
Is there any evidence that is reasonably capable of supporting the facts the plaintiff is required to prove in respect of each element of the cause of action?
- If there is no evidence on any essential element of the cause of action, the case should be dismissed.
- If there is some evidence on each element of the cause of action required to be proved by the plaintiff, then the matter should go to the jury.
We will now reference the cases referred to by both parties in this “no evidence” application by the Defence to have this claim dismissed.
- Roberge v. Huberman, 1999 BCCA 196, at paras. 17-19
- Tran v. Kim Le Holdings Ltd., 2010 BCCA 156, at para. 2;
- Brule v. Rutledge, 2015 BCCA 25, at paras. 25-27; and
- Insurance Corporation of British Columbia v. Mehat, 2018 BCCA 242, at paras. 45-50.
Standard of skill
- Ter Neuzen v. Korn,  3 SCR 674, at para. 33;
- Chang v. Vancouver Coastal Health Authority, 2007 BCCA 569, at para. 23
The standard of care applicable to a specialist medical practitioner is ordinarily proved by expert evidence
- Ter Neuzen at para. 44;
- Mikhail v. Northern Health Authority (Prince George Regional Hospital), 2010 BCSC 1817, at paras. 108-109;
- Tripp v. Ur, 2013 BCSC 785, at paras. 30-31
- Seiler v. Mutual Fire Insurance Company of British Columbia, 2003 BCCA 696, at paras. 13-15
- Entlich v. Lambert, 2019 BCPC 142, at paras. 58-59
- Schellenberg v. Wawanesa Mutual Insurance Company, 2019 BCSC 196, at paras. 118-119
Cases in which expert evidence was not required to prove a standard of care and breach of a standard of care
- Buckingham v. Hobza, 2023 BCSC 399
- Comeau v. Saint John Regional Hospital, 1999 CanLII 9414 (NB KB)
- Rupert v. Toth, 2006 CanLII 6696 (ON SC);
- Schanczl v. Singh, 1987 CanLII 3223 (AB KB);
- Webster v. Chapman, 1997 CanLII 3108 (MB CA); and
- Goodwin v. Olupona, 2013 ONCA 259.
 From the above authorities, it is clear that the standard of care applicable to a medical specialist is frequently proved by expert evidence, but expert evidence is not always required. Whether expert evidence is required depends on the particular circumstances. More specifically, it depends on the nature of the alleged negligent conduct.
 The authorities have used different language to describe the circumstances where expert evidence is required to prove a standard of care and breach of a standard of care. However, the theme running through the cases is that expert evidence is required where the matter involves technical or specialized knowledge or experience that is beyond the knowledge or experience of laypersons. Where the matter does not involve specialized or technical knowledge or experience, expert evidence is not required.
As is noted, one must assess whether a matter involves technical or specialized knowledge or experience that is beyond the knowledge or experience of laypersons to determine whether expert evidence should be adduced. Of course, it may be of value to seek expert evidence regardless in order to avoid such an argument being raised.
In the circumstances of this case, these were the points that were identified by the Court that led to the conclusion that expert evidence was required to prove that there was a breach of the standard of care in this specific case, and since there was no expert evidence adduced by the Plaintiff, the Defendant was successful in seeking an Order dismissing the action:
- The subject case involved ECT treatments;
- ECT treatments involves electric shock to the brain to induce a controlled seizure.
- Ask yourself “what is the experience that laypeople have with the procedure?” In this case, ECT treatments.
- It if is not common, you will need to seek expert evidence in the claim.
- The jury would need to be able, without expert evidence, to identify the proper basis upon which they could determine a standard of care.
- If the experience of most would be only through media, books, or movies, this will not be sufficient to argue that expert evidence is not required.
- Laypersons not only lack experience with ECT treatments; they also lack the knowledge necessary to determine the standard of care in respect of such treatments.
- The procedure uses specialized equipment and is highly complex, technical, and of course specialized.
- Identify the type of knowledge a layperson would require surrounding the procedure:
- Knowledge of electricity.
- Knowledge of human anatomy;
- Knowledge of how the intensity and duration of electrical charges affect the brain;
- Knowledge of how and when such charges are beneficial or potentially detrimental.
- Can common sense considerations provide guidance on the procedure?
The court stated: “to ask the jury to determine the standard of care without expert evidence is to ask them to pick a standard out of the air. It would be devoid of any rational basis.”
“In my opinion, to discharge the onus on him, the plaintiff was required to present expert evidence of the standard of care applicable to the defendants. Having not done so, the plaintiff is not able to prove a breach of standard of care by the defendants, and the case must be dismissed.”
“The action is therefore dismissed.”
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