IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Harry v. Kalutharage, |
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2019 BCSC 403 |
Date: 20190321
Docket: M155183
Registry: New Westminster
Between:
Jagmohan Deep Kaur Harry
Plaintiff
And
Dilshan Kalutharage and Viraj Kalutharage
Defendants
- and -
Docket: M182390
Registry: New Westminster
Between:
Jagmohandeep Kaur Harry
Plaintiff
And
Jeffrey Graham, City of Surrey,
Insurance Corporation of British Columbia,
John Doe and Jane Doe
Defendants
- and -
Docket: M190630
Registry: New Westminster
Between:
Jagmohandeep Kaur Harry
Plaintiff
And
Asha Mehta and Ragav Mehta
Defendants
Before: The Honourable Madam Justice Devlin
Reasons for Judgment
Re: Admissibility of Expert Report of Dr. Dhillon
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Counsel for the Plaintiff in all actions: |
Deepak Gautam |
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Counsel for the Defendants Dilshan Kalutharage, Viraj Kalutharage, Asha Mehta, Ragav Mehta and ICBC: |
Stephanie L. Markovich |
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Counsel for the Defendants City of Surrey and Jeffrey Graham: |
Melanie Booth |
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Place and Date of Hearing: |
New Westminster, B.C. February 28, 2019 |
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Place and Date of Judgment: |
New Westminster, B.C. March 21, 2019 |
[1] The plaintiff, Ms. Harry, seeks to tender a report by Dr. Baldev Dhillon dated March 6, 2014 at trial. While counsel acknowledges that he did not comply with the Supreme Court Civil Rules, B.C. Reg. 168/2009 [SCCR], he invites the Court to exercise its discretion pursuant to R. 11-7(6) to admit the report.
[2] Counsel for the defendants challenges the admissibility of Dr. Dhillon’s report because it does not comply with Rules 11-2 and 11-6.
[3] I advised counsel of my decision with reasons to follow. These are the reasons.
[4] On February 7, 2014, counsel for Ms. Harry wrote to Dr. Dhillon requesting a “short medical letter” with respect to his recent referral for psychological treatment. This request was made in response to an issue that had been raised “with respect to causation of Ms. Harry’s psychological condition”. Dr. Dhillon was asked to provide his diagnosis of Ms. Harry’s symptoms. Counsel for Ms. Harry refers to this request letter as the “instruction letter” to Dr. Dhillon. He requested the letter in order to have ICBC consider funding Ms. Harry’s psychological treatment.
[5] On March 6, 2014, Dr. Dhillon sent a letter to Ms. Harry’s counsel “in response to your request for information in regards to Ms. Harry’s referral for psychological treatment”. None of the requirements of R. 11-6 are addressed in this letter. As noted, Ms. Harry seeks to have this letter tendered as an expert report in the trial proper.
[6] On January 29, 2019, counsel for Ms. Harry sent Dr. Dhillon’s March 6, 2014 letter to the defendants’ counsel notifying them of his intention to rely on Dr. Dhillon’s expert report at trial. This report was served on defendants’ counsel 27 days before trial. Rule 11-6(3) requires service of an expert report at least 84 days before the scheduled trial date.
[7] On January 31, 2019, and February 5, 2019, counsel for the defendants wrote to Ms. Harry’s counsel advising of their objection to the admissibility of Dr. Dhillon’s report due to late notice and its non-compliance with R. 11-6.
[8] On February 21, 2019, Ms. Harry’s counsel responded to the defendants’ letters by sending them a copy of Dr. Dhillon’s letter of the same date together with a copy of Dr. Dhillon’s curriculum vitae and Dr. Dhillon’s letter.
[9] Rule 11-6 of the SCCR sets out the requirements for tendering an expert report:
(1) An expert's report that is to be tendered as evidence at the trial must be signed by the expert, must include the certification required under Rule 11-2 (2) and must set out the following:
(a) the expert's name, address and area of expertise;
(b) the expert's qualifications and employment and educational experience in his or her area of expertise;
(c) the instructions provided to the expert in relation to the proceeding;
(d) the nature of the opinion being sought and the issues in the proceeding to which the opinion relates;
(e) the expert's opinion respecting those issues;
(f) the expert's reasons for his or her opinion, including
(i) a description of the factual assumptions on which the opinion is based,
(ii) a description of any research conducted by the expert that led him or her to form the opinion, and
(iii) a list of every document, if any, relied on by the expert in forming the opinion.
[10] Rule 11-2 referred to in R. 11-6(1) provides:
(1) In giving an opinion to the court, an expert appointed under this Part by one or more parties or by the court has a duty to assist the court and is not to be an advocate for any party.
(2) If an expert is appointed under this Part by one or more parties or by the court, the expert must, in any report he or she prepares under this Part, certify that he or she
(a) is aware of the duty referred to in subrule (1),
(b) has made the report in conformity with that duty, and
(c) will, if called on to give oral or written testimony, give that testimony in conformity with that duty.
[11] Rules 11-6(10) and (11) deal with notice of objection to an expert report in these terms:
(10) A party who receives an expert report or supplementary report under this Part must, on the earlier of the date of the trial management conference and the date that is 21 days before the scheduled trial date, serve on every party of record a notice of any objection to the admissibility of the expert's evidence that the party receiving the report or supplementary report intends to raise at trial.
(11) Unless the court otherwise orders, if reasonable notice of an objection could have been given under subrule (10), the objection must not be permitted at trial if that notice was not given.
[12] With respect to the Court’s discretion to admit the document as an opinion under R. 11-7 provides:
(1) Unless the court otherwise orders, opinion evidence of an expert, other than an expert appointed by the court under Rule 11-5, must not be tendered at trial unless
(a) that evidence is included in a report of that expert that has been prepared and served in accordance with Rule 11-6, and
(b) any supplementary reports required under Rule 11-5 (11) or 11-6 (5) or (6) have been prepared and served in accordance with Rule 11-6 (5) to (7).
…
(6) At trial, the court may allow an expert to provide evidence, on terms and conditions, if any, even though one or more of the requirements of this Part have not been complied with, if
(a) facts have come to the knowledge of one or more of the parties and those facts could not, with due diligence, have been learned in time to be included in a report or supplementary report and served within the time required by this Part,
(b) the non-compliance is unlikely to cause prejudice
(i) by reason of an inability to prepare for cross-examination, or
(ii) by depriving the party against whom the evidence is tendered of a reasonable opportunity to tender evidence in response, or
(c) the interests of justice require it.
[13] I now turn to consider whether Dr. Dhillon’s report satisfies the SCCR requirements.
[14] The defendants take the position that Dr. Dhillon’s letter failed to set out the qualifications and educational experience, the instructions provided, the nature of the opinion sought and failure to comply with R. 11-6 (a – f).
[15] I agree with the defendants that Dr. Dhillon’s report fails to comply with the requirements of expert reports set out in R. 11-2 and R. 11-6 of the SCCR. The March 6, 2014 letter lacks the expert certification as required in R. 11.2.
[16] With respect to R. 11-6, the March 6, 2014 letter is deficient for these reasons:
· R. 11-6(1)(b) - the report fails to provide the expert’s qualifications and employment and educational experience or area of expertise;
· R. 11-6(1)(c) - the reports fails to provide the instructions provided to the expert in relation to the proceeding;
· R. 11-6(1)(d) - the report fails to identify the nature of the opinion being sought “request for information in regards to Ms. Harry’s referral for psychological treatment”; and
· R. 11-6(1)(f) - the report fails to identify the factual assumptions on which Dr. Dhillon bases his opinions; a description of any research conducted by the expert that led to his opinion; and fails to identify the records or documents reviewed by Dr. Dhillon relied on in forming his opinion.
[17] Clearly, the Dr. Dhillon report fails to adhere to the requirements of the SCCR.
[18] Counsel for Ms. Harry argues that the late service of the report does not cause prejudice to the defendants as they were aware of the existence of the report since at least May 2016. Additionally, the letter was included in the list of documents provided to Dr. Gharsaa, who they retained to conduct a medical examination of Ms. Harry on June 3, 2016. In the May 3, 2016 letter to Dr. Gharsaa, he is directed to summarize reports of other experts if he disagreed with them.
[19] In addition, counsel for Ms. Harry argues that the issues referred to in Dr. Dhillon’s letter were live issues and canvassed in the clinical records.
[20] The defendants say they were prejudiced because Dr. Dhillon’s report does not provide any information regarding what reports he may have reviewed in forming his opinion. Furthermore, the fact is, the report was provided out of the time frame permitted by the SCCR.
[21] I agree with the defendants that they were prejudiced due to the lack of information in Dr. Dhillon’s March 6, 2014 letter. It is not sufficient for the plaintiff’s counsel to rely on the fact that Dr. Dhillon’s clinical records had been produced. There is nothing in his letter which addresses or mitigates the deficiency identified by the defendants. It would not be possible for the defendants to even respond to Dr. Dhillon’s report, not only because of the time in which it was served on them, but for the reason that any reports he relies on to inform his opinion are not identified.
[22] The exercise of discretion provided in R. 11-7(6)(c) must be exercised sparingly “with appropriate caution, and in a disciplined way given the express requirements contained in Rules 11-6 and 11-7. That is, the ““interests of justice” are not a reason to simply excuse or ignore the requirements of the other Rules.” (Cambie Surgeries Corp. v. British Columbia (Attorney General), 2017 BCSC 581, leave to appeal ref’d 2017 BCCA 287 at para. 53 [Cambie Surgeries]).
[23] The parties each supplied me with case authorities, and the plaintiff relies on Cambie Surgeries; and Isbister v. Delong, 2017 BCCA 340, leave to appeal ref’d [2017] SCCA No. 473. I do not see how either of the plaintiff’s authorities assist Ms. Harry’s position on justifying the exercise of my discretion for the late service of Dr. Dhillon’s report and the prejudice that results from the defendants’ inability to properly respond for the reasons I have mentioned. I do not consider that this is an appropriate case to exercise my discretion pursuant to R. 11-7(6) to admit the report of Dr. Dhillon. As stated earlier, Dr. Dhillon’s letter was not originally made to be an expert opinion and further, it lacks the substance that an expert report would contain. In short, at this point, it is not an expert report at all. It would not be appropriate for this Court to admit evidence opinions that were “not crafted for that purpose and [which] are without the necessary information to permit consideration of their substance and effect in the context of the issues before the court”: Healey v. Chung, 2015 BCCA 38: at para. 28.
[24] Litigants must be careful to comply with the SCCR’s requirements – they are not to be flippantly ignored. Moreover, pleading for the courts to exercise their discretion to cure deficiencies for lack of compliance with the SCCR should not be made with self-made post facto recognition that the expert reports are defective (see also Pichugin v. Stoian, 2014 BCSC 2061 at para. 19). The SCCR requirements set out just and structured procedures that ensure fairness to all parties to a matter, accordingly, breaches of the expert report requirements under the SCCR requires compelling reasons to justify the court’s exercise of discretion to admit the report.
[25] In my view, this is not a case in which the interests of justice require deviating from the requirements of the Rules. I agree with the defendants’ objections to the report’s admissibility. Given the deficiencies identified in the letter and the prejudice that is occasioned on the defendants, I am not prepared to exercise my discretion to admit Dr. Dhillon’s report.
[26] Therefore, the letter of Dr. Dhillon is not admissible at trial.
“Devlin J.”