Joint Experts – Considerations

Joint Experts has been a topic of discussion recently in the legal industry, specifically relating to personal injury claims since Rule 11-8 was created limiting the experts in motor vehicle action claims. 

While joint experts have more commonly been used in family law cases, and even construction cases, rarely have we seen them used in motor vehicle action claims.  However, this is likely going to change and evolve over time.

Joint experts are meant to serve a purpose, some of which are outlined:

  1. to reduce litigation costs;
  2. to share the cost of the expert opinion between both parties;
  3. to combat ICBC’s escalating costs in motor vehicle action cases;
  4. expedite the litigation process and increase efficiency.

We are going to review a few cases that have raised the topic of joint experts and we will simply enumerate the points that were highlighted in each case.  These points may shed further light going forward should one party seek an Order at a Case Planning Conference that a joint expert be appointed.

Sarrafi v. Sun Life Assurance Company of Canada, 2016 BCSC 1898 (CanLII)

  • the Court may order a joint expert at a Case Planning Conference (CPC), not by way of a chambers application.
  • applications for a joint expert is rare, but this may evolve to become more common
  • you must have case authority in support of your application to seek a joint expert (there are not many cases)
  • ensure you are referencing the correct Rule on application for a joint expert (it is not Rule 11-3) See Rule 5-3 (k)
  • Note: A case law dealing with joint experts is Benedetti Breker2011 BCSC 464 (CanLII)
  • The matter must be deemed suitable to have a Court appoint a jointly retained expert (may be more likely to do so now that Rule 11-8 exists);
  • The expert would not be named at the Case Planning Conference;
  • The process for naming the expert is outlined in Rule 11-3, including what instructions would be provided to the said expert.
  • Chambers application would be necessary if the parties could not agree on:
    1. the identity of the expert,
    2. the issue,
    3. the facts or assumptions,
    4. the questions to be considered by the expert,
    5. when the report must be prepared and given to the parties, and
    6. the responsibility for fees
  • any application seeking a joint expert should be made in a timely manner, and not too close to a scheduled trial date. If a trial date is in jeopardy, the Court may disagree with the appointment of a joint expert.
  • Be aware of Rule 11-3(7), which states that once a joint expert is appointed, the joint expedrt is the onlyexpert who, in relation to the parties to the agreement, may give expert opinion evidence in the action on the issue. [emphasis added]

Leer and Four L. Industries v. Muskwa Valley Ventures Ltd., 2011 BCSC 930 (CanLII)

  • Consider the timing of seeking a joint expert – is it too early in the litigation process to seek such an Order
    • has a date for discloaure of documents been set
    • has a date for completion of examinations for discovery been made
    • have discussions taken place on scheduling a trial date
    • is it premature to seek a jointly-appointed expert?
  • Don’t forget to quote Rule 1-3, the proportionality test of conducting a legal proceeding
  • Reducing litigation costs is a factor of consideration by the court and should be consistent with the amount involved
  • You may seek a request that both parties share in the cost of the jointly-appointed expert but the matter of costs will remain with the trial judge
  • Rule 5-3 provides the court with discretionary authority on whether a joint expert should be appointed

Sekhon v Gill, 2019 BCSC 811 (CanLII)

  • The Lieutenant Governor in Council recently enacted Rule 118of the Supreme Court Civil Rules
  • This new rule does not apply to cases coming to trial before December 31, 2019 (see Rule 118(11)(a)(ii) of the Supreme Court Civil Rules)
  • Policy is to place limits on the number of experts appearing in motor vehicle actions
  • Key is to limit the associated expenses to both parties
  • This rule is meant to control the Insurance Corporation of British Columbia’s litigation costs.  

The Court went on to say:

“the court will have to adjust to when Rule 118 of the Supreme Court Civil Rules comes into full force. The court will always require medical expert evidence, but parties will not necessarily be able to call the best possible expert evidence on every point. Parties and the court will often have to rely on the overlap that frequently exists between areas of expertise.

Benedetti v. Breker, 2011 BCSC 464 (CanLII)

  • Jointly appointed experts are not new to litigation in BC
  • For over 30 years, family law cases have used joint experts
  • Joint experts are appointed to investigate and prepare numerous types of reports in family law cases
  • Jointly-appointed experts are also used in construction litigation cases
  • The legislation is pushing for a wider application of joint experts
  • The relevant rule for appointment of a joint expert is Rule 5-3(1)(k)(i), authorizing the presiding Judge or Master to order
  • Rule 11-3 permits the court to direct who that joint expert will be

It may also be useful to review some published family law cases that have argued for and against a joint expert to shed some light on the Courts comments.

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