Our accredited program Seeking Leave of the Court for Additional Experts reviews three key published decisions from the BC Supreme Court that provide greater comprehension and a good framework of Section 12(1)(5) of the BC Evidence Act relating to Expert Limits. The cases are noted:
Vespaziani v. Lau, 2021 BCSC 1224 (CanLII)
Raniga v. Kang, 2021 BCSC 2340 (CanLII)
Ghane v. Bhullar, 2022 BCSC 929 (CanLII)
Our program also reviewed similar legislation introduced in Alberta under Section 558.1 of the Alberta Insurance Act, RSA 2000, c I-3.
If you have not watched our program, you may send us an email and Viewpoint will rebroadcast the program: priscilla.cicek@vp-group.ca.
Since broadcasting our program, we have now seen a published decision in Alberta, a recent application to the Court seeking leave of the Court to tender additional experts and reports. The Court’s reasons were published on May 28, 2024 and is referenced as Norris v Vomacka, 2024 ABKB 312 providing relevant insight on Section 558.1 of the Insurance Act, RSA 2000. The legislation in Alberta came into force on December 9, 2020 and pertain to actions that are commenced on or after January 1, 2021.
The Facts
This is a claim for general damages in the sum of $150,000. for injuries suffered as a result of a motor vehicle collision dated March 14, 2021. The injuries noted are chronic pain, physical symptoms, balance issues, and psychological compromise, as well as functional impairments and a loss of ability to work at his pre-accident capacity, as a direct result of the accident. A claim is also being advanced for lost income and special damages.
The Legislation
The legislation applies to actions commenced on or after January 1, 2021 and in claims for damages for bodily injury or death resulting from the use or operation of a motor vehicle as defined in the Traffic Safety Act.
The relevant Section referenced in these applications is Section 558.1(2)(a) which states:
(a) a party to a motor vehicle injury proceeding in which value of the claim for motor vehicle injury damages is $100 000 or more shall not tender the following at trial:
(i) expert evidence of more than 3 experts on the issue of motor vehicle injury damages;
(ii) more than one report on the issue of motor vehicle injury damages from each expert referred to in subclause (i).
Section 558.1(2)(b) pertains to claims of $100,000 or less, which states that not more than one expert and one report from that expert shall be tendered in evidence.
The Legislation makes it clear that you may tender additional experts/reports with Consent of the opposing party. Failing that, leave of the Court is necessary. If you fail to seek leave of the Court, you may find yourself in a difficult position, as the Court does not have authority to consider the legislation without leave of the Court. We saw this in Coulombe v. Morris, 2021 BCSC 2034 where in the Court stated: The plaintiff made no such application. Accordingly, I see no role in the analysis for the Evidence Act amendments to which counsel for the plaintiff refers.
If consent is not granted by the opposing party, your application must reference Section 558.1(6) which outlines the two-part test that must be satisfied in order to be successful in these applications:
These conditions are that:
(a) the subject matter of the additional evidence to be tendered is not already addressed by expert evidence permitted under subsection (2) or (4); and
(b) without the additional expert evidence, the party making the application would suffer prejudice disproportionate to the benefit of not increasing the complexity and cost of the proceeding.
Medical Evidence
Counsel on behalf of the Plaintiff had retained three reports from a Physiatrist, Occupational Therapist and Economist.
The Physiatrist identified memory issues that may be related to persistent post-concussion and recommended an assessment by a neuro-psychologist.
There were also symptoms of ongoing disequilibrium and recommended an assessment by an ENT expert to review this further.
The Arguments
On behalf of the Plaintiff, counsel sought leave of the Court for two additional experts from an ENT Physician and Neuro-psychologist to assess these on-going symptoms. These experts were qualified to comment on these ongoing issues. As consent was not granted by the Defendants, this necessitated an application to the Court.
Prejudice
The Plaintiff argues that he will be prejudiced if he is not permitted to tender additional expert evidence. A key argument was that the existing evidence did not address the memory issues and disequilibrium and the additional evidence was needed to address these ongoing symptoms.
The Defendants opposed the application.
- They argue that the Plaintiff must have known that two additional assessments were recommended by the Physiatrist at the time he chose to tender the existing reports;
- They argue that the Plaintiff has not met the requirement in Section 558.1(6)(b) to prove that he would suffer prejudice disproportionate to the benefit of not increasing the complexity and cost of the proceeding.
The Defence states “there is no evidence on the record to establish prejudice. The statute clearly places the onus on Mr. N. to establish that he would suffer prejudice disproportionate to the increased complexity and cost.”
It is argued by the Plaintiff (quoting from the case):
Prejudice is a matter for argument based on the record, and that further evidence is not required to establish prejudice in these circumstances. Mr. N. says his claim is inherently complex because of the nature of his injuries and if the Court refuses leave, there will be no ability to address with expert evidence the additional issues raised by Dr.
Mr. N. argues that prejudice will occur at trial as, if leave is not granted, he will be prejudiced in his ability to prove what his injuries are, what he functionally cannot do, what care he needs, and what damages he has suffered, including general damages, special damages, and for loss of income and future loss of income earning capacity.
Conclusion
[19] I agree with Mr. N. that actual prejudice will only be made out at trial when it will become apparent whether the additional expert reports were necessary for him to prove his claim. But whether Mr. N. would suffer prejudice in this case is established by looking at the heads of damage claimed in the Statement of Claim and considering what expert evidence may be required to prove the claims based on Dr.’s recommendation, as well as reviewing the claims for which expert evidence has already been tendered. In these circumstances, I find the record before me is sufficient to satisfy the requirement in section 558.1(6)(b) that Mr. N. would suffer prejudice if leave is not granted to tender additional expert assessments from a neuropsychologist and an ENT physician relating to his injuries.
[20] When weighing prejudice against the increased complexity and cost that will result if leave to tender additional expert reports is granted, I consider that increased complexity and costs of the action can be addressed through a potential costs award following trial when the Court can assess the benefits of the additional expert reports, and the resulting additional complexity and costs are known.
[21] In this case, it is clear from the Statement of Claim and the subject areas of the three expert reports tendered that if leave is not granted for additional reports to be tendered, Mr. N. will be prejudiced in his ability to establish some of his symptoms and prove some of his claims. This prejudice outweighs the concern about additional complexity and costs as those can be considered in costs following trial.
[22] I conclude that the requirement in section 558.1(6)(b) is satisfied in the circumstances of this matter, given the nature of the claims and the recommendation of Dr. for further expert assessments. If leave is not granted to tender two additional expert reports, the prejudice that Mr. N. would suffer is disproportionate to the benefits of less complexity and lower costs. Therefore, I grant Mr. N.’s application for leave to tender the additional expert reports of Ear, Nose and Throat physician and neuropsychologist.
Case Link: Norris v Vomacka, 2024 ABKB 312 (CanLII)
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