Three (3) Experts, ICBC, and the Evidence Act walk into a Bar.
In today’s blog, we discuss the recent case of Vespaziani v Lau, 2021 BCSC 1224, one of the first decisions to consider ICBC’s new, likely unconstitutional, three expert limit.
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Rather than bothering you with superfluous commentary, we rely heavily on the Trial Judges comments; in his comments, Mr. Justice Kirchner states as follows:
On November 11, 2017, the plaintiff, Leni Vespaziani, was travelling as a passenger in a vehicle driven by the defendant Dmitri Black when it collided head‑on with a vehicle driven by the defendant Kit Yee Lau. Ms. Vespaziani brought this action against the defendants seeking damages for injuries she claims to have suffered as a result of the accident.
Ms. Vespaziani is 26 years old. She claims to have suffered various injuries as a result of the accident, including a mild traumatic brain injury, neck and back injuries, trauma and stress‑related disorders, adjustment disorder with mixed anxiety and depressed mood, among other injuries. She claims that the injuries present occupational challenges for her that include a likely inability to work full time during periods of high demand and stress and potential impacts on her ability to advance to more senior positions in her chosen field of work as an urban planner.
Ms. Vespaziani has served the following expert reports:
a neurology report of Dr. Donald Cameron dated December 5, 2020;
a physiatry report of Dr. Heather Finlayson dated April 11, 2019, plus a follow-up report dated January 11, 2021, and a one‑page report specific to the use of CBD oil dated February 6, 2021;
a psychology report of Dr. Johnson Ma dated February 28, 2021;
a vocational assessment report of Derek Nordin dated February 5, 2021;
an occupational therapy report of Cynthia Moran dated January 29, 2021; and
a loss of future earnings report and cost of future care report, both by an economist, Sergiy Pivnenko, and both dated February 12, 2021.
The defendant Mr. Black brought this application seeking to prohibit Ms. Vespaziani from tendering more than three expert reports at trial pursuant to s. 12.1(2) of the Evidence Act, R.S.B.C. 1996, c. 124. Ms. Vespaziani opposes the application and seeks leave under s. 12.1(5) of the Act to tender all but one of the expert reports she served on the defendants.
In response, Plaintiff’s counsel argued as follows:
In her submissions, Ms. Hayman referred to the first three sets of reports, that is Drs. Cameron, Finlayson and Ma reports, as "first-tier reports" that relate to the different types of injuries that Ms. Vespaziani is alleged to have suffered. She referred to the second three sets of reports, the Moran, Nordin and Pivnenko reports, as second- and third-tier reports that describe how the alleged injuries are likely to affect Ms. Vespaziani's physical and mental well being, her employment and advancement opportunities, her cost of future care, and her loss of future income.
In particular, with regard to the second- and third-tier reports:
a) Mr. Nordin, a vocational consultant, reports on occupational challenges that he opines Ms. Vespaziani is likely to encounter because of her injuries. His report addresses, among other things, Ms. Vespaziani's abilities to advance to more senior positions in her chosen field of work and her future earning capacity;
b) Ms. Moran's report opines from the perspective of an occupational therapist on Ms. Vespaziani's present and future care needs. Ms. Moran's opinion is based on the medical reports, that is the first-tier reports, as well as her own assessment of Ms. Vespaziani's condition and abilities; and
c) Mr. Pivnenko's reports seek to quantify the alleged loss of future income based on a number of sources, including but not limited to Mr. Nordin's report and the alleged cost of future care resulting from Ms. Moran's opinion.
As I understood Ms. Hayman's submissions, if three reports must be sacrificed under s. 12.1(2) of the Evidence Act, it would have to be these second- and third-tier reports. She emphasized, though, that sacrificing these reports would, in her submission, prevent her from making proof of essential elements of the damages claim, and she would advance this position at the trial should she be precluded from tendering the reports under s. 12.1 of the Evidence Act.
On this application I must address two issues:
Whether the plaintiff should be permitted under s. 12.1(5) of the Evidence Act to file more than three expert reports; and
Whether the plaintiff should be granted leave under the same section to file more than one report from a single expert.
Pertaining to the law, the Trial Judge wrote:
[19] The provisions of the Evidence Act at issue in this application came into force only recently on August 10, 2020. As noted, they restrict the number of expert reports that may be tendered in what is defined in the Act as a "vehicle injury proceeding." The parties agree that the present case falls within that definition and that the damages claimed by the plaintiff constitute "vehicle injury damages," which is also a defined term in the Act.
[20] The applicable provision of the Act are as follows:
Section 12.1(1):
"vehicle injury damages" means damages for personal injury, or death, resulting from the use or operation of a vehicle as defined in the Motor Vehicle Act;
"vehicle injury proceeding" means a civil proceeding in the Supreme Court that includes a claim for vehicle injury damages.
(2) Except as provided under this section or the regulations,
(a) a party to a vehicle injury proceeding, other than a fast track vehicle injury proceeding, must not tender the following at trial:
(i) expert evidence on the issue of vehicle injury damages, of more than 3 experts;
(ii) more than one report on the issue of vehicle injury damages from each expert referred to in subparagraph (i) ...
(c) the court must not allow a party to tender expert evidence at the trial of a vehicle injury proceeding if doing so would result in exceeding the limits set out in this subsection.
[21] On its face, then, and but for subsections 12.1(4), (5), and (6), to which I will turn in a moment, the court is obligated under paragraph (c) of s. 12.1(2) to not allow a party to tender more than three expert reports in a vehicle proceeding. However, subsections (4), (5), and (6) carve out exceptions. Subsection (4) provides an exception where all parties agree to a party tendering additional experts. Subsection (5) allows the court to grant an exemption to subsection (2) under specific conditions that are set out in subsection (6). Subsections (5) and (6) read:
(5) On application by a party to a vehicle injury proceeding, the court may, if satisfied that the conditions set out in subsection (6) are met, grant leave to
(a) allow expert evidence of one or more additional experts to be tendered, despite the limit set out in subsection (2) (a) (i) or (b) (i), or
(b) allow the party to tender as evidence one or more additional reports from an expert referred to in subsection (2) (a) (i) or (b) (i), (4) (a) or paragraph (a) of this subsection, despite the limit set out in subsection (2) (a) (ii) or (b) (ii), as applicable.
(6) The following are the conditions for the purposes of subsection (5):
(a) the subject matter of the additional evidence to be tendered is not already addressed by expert evidence of the party making the application as permitted under subsection (2) or (4);
(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.
[22] A question arose during the hearing of the application as to whether the conditions in subsection (6) are conjunctive or disjunctive, there being neither an "and" nor an "or" following paragraph (a). However, based on the wording of subsection (5), which requires that the "conditions" (plural) in subsection (6) be met before an order under subsection (5) can be made, I take them to be conjunctive such that both conditions must be met.
[23] I have not had submissions on whether the two conditions should be considered separately or together. That is, it may be that factors under the second condition, which deals with prejudice and proportionality, might be so overwhelming in a given case that they could overcome some shortcomings in the first condition, which seeks to avoid repetition of the expert evidence. In the absence of submissions on the point, though, I will proceed in this application on the basis that both conditions must be met and that they are to be considered separately.
[24] Counsel advised me that there are no published decisions that have considered s. 12.1 of the Act. The very short timeframe required for a determination on this application does not allow for an extensive analysis of this relatively new provision. I have decided this application on the specific facts of this case and in the circumstances that require a quick decision. There are undoubtedly important policy considerations that surround the enactment of s. 12.1, but these were not addressed in the submissions of counsel and could not be fully explored in the time available for a decision.
[25] Nevertheless, I am satisfied based on the evidence before me and the positions taken by the parties that I am able to make the necessary determination of the application of ss. 12.1(5) and (6) to the specific facts of this case.
The Trial Judge went on to state:
[26] The applicant's central argument is that there is nothing extraordinary about this case that would justify a departure from the limitations imposed by s. 12.1(2). He notes that those limitations are mandatory in that they state that a court "must" not allow a party to tender expert evidence that exceeds the limits set out in that section. This, of course, is qualified by subsections (5) and (6).
[27] Notably, Ms. Vespaziani's position, at least with respect to the nature of the case, appears consistent with Mr. Black's. After taking the court through the expert reports served in this case, Ms. Hayman remarked that “this is a classic structure of all PI claims since time immemorial.” Though not stretching back to time immemorial, the authorities cited and summarized in appendix A to Ms. Vespaziani's application response would seem to support the general point that Ms. Hayman seeks to make.
[29] …I do not read the conditions set out in s. 12.1(6) to require that a case be of an extraordinary or unusual nature before a court can make an order under s. 12.1(5). Rather, the conditions focus on (1) whether the subject matter of the additional reports is already addressed by other expert evidence led by the party; and (2) whether the party making the application would suffer prejudice disproportionate to the benefit of not increasing the complexity and cost of the proceeding.
[30] The first condition seeks to root out duplication, or as it had been described in other cases, "piling on " of expert evidence. See, for example, Smith v. Obuck, 2018 ABQB 849, at para. 21. The second condition of s. 12.1(6) is a weighing exercise to balance the prejudice to the party of not having the benefit of the expert report against the impact of the expert report on the cost and complexity of the case. With respect to the argument advanced on behalf of Mr. Black, while extraordinary aspects of a particular case might be a consideration under the framework for analysis, grounding this application solely or primarily on the basis that this is not an extraordinary motor vehicle accident case does not address the precisely worded conditions of s. 12.1(6).
[31] Mr. Black relies on Sam v. British Columbia, 2016 BCSC 86, in support of his position. That case dealt with a limitation on the number of experts found in the Canada Evidence Act, R.S.C. 1985, c. C‑5. Section 7 of the Canada Evidence Act restricts the number of experts that are party may call to five unless the court grants leave otherwise. In Sam, Justice Bracken allowed the plaintiffs to file more than five reports noting at paras. 21 and 25 the unique and complex nature of the case before him. However, unlike s. 12.1(6) of British Columbia's Evidence Act, the Canada Evidence Act contains no specific conditions or considerations to apply when a court is asked to grant leave to call additional experts. The considerations applicable to the Canada Evidence Act have been developed by decisions of the courts, and one of those considerations as noted in Sam appears to be the complexity of the case.
[32] By contrast, the British Columbia Evidence Act expressly sets out the two specific conditions that must be met to permit expert reports beyond the limits of s. 12.1(2), neither of which requires the case to be unique or particularly complex. In this regard, authorities under the Canada Evidence Act can only be of assistance to an application of this nature when the court-developed considerations speak to matters also covered in s. 12.1(6) of the BC Act.
[33] With that, I turn to the two conditions, dealing first with s. 12.1(6)(a).
Section 12.1(6)(a): Duplication
[34] As noted, the first condition in s. 12.1(6) seeks to avoid the duplication or "piling on" of expert reports. I am satisfied that this condition is met for all the reports at issue in this application. While there is a measure of overlap amongst some of the reports, I find the specific subject matter of each report is not already addressed in other expert reports served by the plaintiff.
[35] Indeed, I did not understand counsel for Mr. Black to contend otherwise. Neither his notice of application nor his oral submissions drew my attention to any specific areas of duplication in the expert reports. Nor, I might add, have I received submissions from defence counsel on how s. 12.1 is to be reconciled with the broader law of evidence that restricts the scope of expert opinion evidence to matters that are within the specific qualifications of the expert. As noted, Mr. Black's main contention is that there is nothing "novel, exceptional, or complex" about this case. See notice of application para. 22.
[36] The three medical reports deal with three different disciplines, with each author possessing specific expertise in the area of their reports, namely neurology, physiatry, and psychology. The distinct areas of expertise are illustrated by a statement in Dr. Cameron's report at pages 8 and 9, where he as a neurologist states that he would:
… defer to the specialist in psychiatry and/or psychology ... to provide an opinion regarding future recommended psychological or psychiatric therapy and long‑term prognosis.
While it may seem obvious that a neurologist would not opine on matters of psychiatry and psychology, this statement illustrates the need, at least in this case, for more than one medical or tier-one report.
[37] Dr. Finlayson, a physiatrist, professes expertise in musculoskeletal injuries, which are the subject of her reports. This too is a distinct area of expertise and, as noted, I had no submissions from the applicant that her reports were redundant to Dr. Cameron's. There is some overlap in the contents of Dr. Finlayson's reports with those of Dr. Cameron and Dr. Ma, but this is not extensive and, in my view, does not extend to the kind of duplication that s. 12.1(6)(a) seeks to avoid.
[38] As noted in Canadian Council for Refugees v. Canada (Citizenship and Immigration), 2018 FC 829, at paras. 27 to 28, some level of overlap is to be expected. As the Alberta Court of Queens Bench observed in Smith v. Obuck, 2018 ABQB 849, a case cited by the applicant that deals with similar restriction in the Alberta Rules of Court, some duplication in the expert evidence does not necessarily amount to piling on the expert evidence.
[39] Turning to the second- and third-tier reports. I have some hesitancy with respect to the report of Mr. Nordin, a vocational consultant. Mr. Nordin relied heavily on other medical opinion reports provided to him, some of which will not be tendered at trial, as well as a vocational test battery that he administered to Ms. Vespaziani. His opinions and conclusions are not vastly different to those offered by other experts. Although he provides them from the perspective of a person professing expertise as a vocational evaluator.
[40] The results of his vocational test battery also provide some additional information. I also note that Mr. Pivnenko, the economist, has relied on Mr. Nordin's report, at least to some extent, to arrive at his opinion on future loss of income. Some of the information he relies upon, namely at page 3 of his future income loss report, could have been obtained directly from Ms. Vespaziani, but other information such as that on page 6 of the same report is based on Mr. Nordin's opinion.
[41] Neither defendant made submissions on the scope and extent of duplication in Mr. Nordin's report with other expert reports. Having reviewed the reports and in the absence of submissions from the defendants to the contrary on the point, I accept that Mr. Nordin's report meets the condition in s. 12.1(6)(a).
[42] Further, having regard to the second condition in s. 12.1(6)(b), it would be prejudicial and indeed unfair to Ms. Vespaziani to preclude her at this late date from tendering the report when the defendants have not sought to identify any areas of duplication. Of course, these comments are directed only at the provisions of s. 12.1 of the Evidence Act and in no way tie the hands of the trial judge to consider admissibility of this or any other reports under the Mohan criteria: R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9.
[43] Finally, having read the reports of Ms. Moran, the occupational therapist, and Mr. Pivnenko, the economist, I am satisfied that the content of these reports is not already addressed by other expert evidence and therefore these reports meet the first condition of s. 12.1(6).
Section 12.1(6)(b): Prejudice to the Plaintiff Disproportionate to the Benefit of Not Increasing the Complexity and Cost
[44] Turning to the second condition of subsection (6), I am satisfied that denying Ms. Vespaziani the ability to tender all the expert reports at issue in this application would prejudice her ability to prove essential elements of the claim. Where, as here, there is no material duplication in the expert reports, it would be unfair, subject to proportionality considerations, to require her to select only three of the six categories of reports to take to trial. In the circumstances of this case, limiting her to only three of the reports would prevent or at least seriously impede proof of essential elements of her damages claim.
[45] I am also satisfied that the prejudice to Ms. Vespaziani in not being permitted to tender the reports would be disproportionate to the benefit of not increasing the complexity and cost of the litigation, assuming, that is, there even is a benefit in terms of complexity in not tendering these reports. In reaching this conclusion, I have considered the following points.
[46] With regard to the first-tier medical reports, I consider all three are necessary to prove the alleged harm suffered by the plaintiff. Each expert opines on matters that are unique to their expertise, neurology, physiatry, and psychology, and all are necessary to advance a claim that Ms. Vespaziani makes. Indeed, as I understood Ms. Hayman's submissions for the plaintiff, she considers these three experts to be critical such that the subject of this application really concerns whether she can tender the second- and third-tier reports.
[47] With regard to those reports, I am satisfied that the prejudice to Ms. Vespaziani in not tendering them is greater than any benefit that might be achieved in not increasing the complexity and cost of the proceedings. These reports, and particularly the Moran and Pivnenko reports, are necessary to prove the impacts of the alleges injured on Ms. Vespaziani's ongoing care needs and ability to work and the quantification of the cost and financial losses of those alleged impacts.
[48] While I have expressed some hesitation about Mr. Nordin's report, for the reasons discussed earlier, I accept that in the specific circumstances of this case the prejudice to Ms. Vespaziani in denying her the opportunity to tender that report at this date stage without specific submissions on the report from defence counsel is greater than the benefit that might be achieved regarding the complexity and cost of the proceeding if the report was excluded. Again, I make no comment on the Mohan criteria as it relates to this report.
[49] With regard to proportionality, the Pivnenko report helps to illustrate the nature of the case and what is at stake. Without commenting on the merits of either the claim or the Pivnenko reports but taking them at face value, they assert potential damages for cost of future care to be in the range of $322,418 to $624,356 and future income loss at $628,224. These are in addition to other potential heads of damages such as for pain and suffering. Obviously, this is a significant claim.
[52] This leads me to the next basis for concluding that the second condition of s. 12.1(6) is met, which is that the trial time expected to be taken up with the second- and third-tier expert reports is relatively short. Counsel agreed in oral submissions that 1.5 days of trial is a reasonable estimate for these experts. Given the potential amounts at stake and when considered in light of other factors that I have and will discuss, I conclude that the prejudice to the plaintiff in not being able to tender the second- and third-tier reports is disproportional to any cost saving or reduction in complexity by potentially saving a day and a half of trial.
[53] I appreciate that trial time is not the only factor governing the cost or the reduction in complexity…However, I do not see that omitting these reports at this stage will significantly reduce the cost and complexity of this case. Indeed, doing so may make the case more costly and complex.
[54] The notion of saving a day and a half or perhaps a little more of trial and the concomitant preparation time by not tendering these expert reports could very well be illusory. Without these reports, the plaintiff is put in the position of trying to prove as many of the matters covered in the reports as possible through lay witnesses or documentary evidence. Assuming that this could even be done, it could very well add to the length or complexity of the trial and preparation time. Proving facts such as a quantification of cost of future care or loss of future earnings without the benefit of an economist to provide the necessary calculations and analysis would significantly add to the complexity by leaving it to the parties and the court to attempt these calculations on their own.
[55] A further though not determinative ground for finding that the second condition of s. 12.1(6) is met is the fact that Mr. Black, who has brought this application, has not served any expert reports. He has left the heavy lifting on the issue of damages and the related expert reports to his co‑defendant, Ms. Lau. Ms. Lau, as noted, takes no position on this application and thus does not oppose Ms. Vespaziani tendering all the reports. In my view, this factor is relevant to the issue of complexity and cost. If Ms. Lau is the defendant shouldering the substantial burden and cost of responding to the expert evidence and the issue of damages, it rings somewhat hollow for Mr. Black to be the only party taking issue with Ms. Vespaziani tendering all her reports. As noted, this factor is not determinative, but it does provide some perspective on the issue of avoiding cost and complexity.
[56] Finally, I note that Ms. Lau has already obtained and served expert reports responding to those served by Ms. Vespaziani. Given the timing of this application, it is too late to achieve any cost savings that might arise from avoiding the need to commission responding reports.
Multiple Reports From One Expert
[57] With that, I turn to the question of whether Ms. Vespaziani may tender multiple reports from one expert. She has served three reports from Dr. Finlayson and two reports from Mr. Pivnenko. As mentioned previously, s. 12.1(2)(a)(ii) of the Evidence Act prohibits a party from serving more than one report from one expert without consent of the parties or leave of the court. The conditions set out in s. 12.1(6) apply to this inquiry. I am satisfied that the conditions of that section are met in each case where Ms. Vespaziani has served more than one report from a single expert.
[58] Dr. Finlayson has provided three reports. Her first is dated April 11, 2019. Her second, which is an update to her first report, is dated January 11, 2021. In my view, it was appropriate for Ms. Vespaziani to obtain an updated opinion from Dr. Finlayson close to the trial date given that the first report would be more than two years old by the time of trial. Dr. Finlayson's 2021 report does not unduly repeat what was said in her 2019 report and relates her 2021 opinions to what she found in 2019. In substance the two reports may be viewed as a single report that opines on Ms. Vespaziani's condition at two different times, once in 2019 and again much closer to trial. This does not constitute piling on, and to require that one of those reports be excluded would prejudice Ms. Vespaziani in a manner that is disproportionate to any benefit of not increasing the complexity or cost of the trial.
[59] The strict requirements of s. 12.1 could have been avoided by having Dr. Finlayson consolidate her two reports into a single one, but this would be a triumph of form over substance. It would also add to the cost of the litigation, contrary to the objectives of s. 12.1, by increasing Dr. Finlayson's professional fees for the time it would take her to consolidate her two reports.
[60] I also find that Dr. Finlayson's third report dated February 6, 2021, may be tendered under s. 12.1(5) as it meets the conditions of subsection (6). This is a single‑page report dealing solely with the issue of purported benefits of CBD oil. Dr. Finlayson characterizes it as an addendum to her previous reports. It contributes almost nothing to the cost or complexity of the case, and the prejudice of the plaintiff of not being able to tender it is highly disproportionate to any savings in cost or complexity that might exist.
[61] Finally, I find that Mr. Pivnenko's two reports may be tendered under s. 12.1(5). They are both dated February 12, 2021. Presumably, they were requested and provided as separate reports because they were seeking to quantify two separate types of losses. Like Dr. Finlayson's reports, these two reports could have been combined into one with two chapters, but again, this would be a victory of form over substance.
Conclusion
[62] For the forgoing reasons, I find that Ms. Vespaziani has met the conditions of s. 12.1(6) of the Evidence Act in this case, and I grant leave under s. 12.1(5) for her to tender all the reports that are the subject of this application. To be clear, this does not include the report of the pain specialist which was served but which the plaintiff decided not to rely upon. That report has not been the subject of this application. The application of Mr. Black is therefore dismissed.
[63] Of course, this conclusion does not speak to the admissibility and certainly not to the weight of any aspect of those reports. It only grants Ms. Vespaziani leave tender the reports as an exception to s. 12.1(2) of the Evidence Act. Whether those reports or portions of them may be admitted into evidence is a matter for the trial judge.