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ICBC Expert Report Admitted Late


The Court of Appeal has rejected the argument that the late admission of ICBC’s experts reports created a prejudice to the claimant. The claimant was injured in a car accident and sought damages in excess of $3 million.  The trial judge awarded damages of less than $850,000.  Among other things, the judge found that:  (a) the accident was not the cause of a bladder condition; (b) her condition had improved and would continue to improve; (c) she would be able to work; and (d) her pre-accident income was less than what was claimed.
On this appeal, the claimant alleges the trial judge erred in:  (a) admitting expert reports tendered by the defendant; (b) assessing the severity and extent of her injuries; (c) determining her pre-accident income; and (d) not awarding interest on money she had borrowed from her lawyers to cover living and other expenses.

The appeal was dismissed and of particular interest is the comment of the majority regarding the admission for late expert reports:

[103]     The decision to admit a late-served expert report involves an exercise of discretion.  As such, the decision is owed deference on appeal.  In Stone v. Ellerman, 2009 BCCA 294, 93 B.C.L.R. (4th) 203, leave to appeal ref’d [2009] S.C.C.A. No. 364, Chief Justice Finch summarized the applicable standard of review as follows:

[94]      Discretionary powers must be exercised in accordance with what the judge thinks the justice of the situation requires.  Judicial discretion is constrained by factors or principles that must be weighed and balanced as between the competing interests, but no rule of law dictates the result.  Accordingly, an appellate court will not interfere with an exercise of judicial discretion unless it can come to the clear conclusion that it was wrongly exercised in that no weight or insufficient weight has been given to relevant considerations (Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3 at 76-77, 88 D.L.R. (4th) 1, [1992] 2 W.W.R. 193) or that on other grounds it appears that the decision may result in injustice (Taylor v. Vancouver General Hospital, [1945] 4 D.L.R. 737 at 743, [1945] 3 W.W.R. 510, 62 B.C.R. 42 at 50 (C.A.)).

[104]     Whether there is prejudice will depend on the circumstances of each case.  A trial judge is best positioned to gauge whether admitting an expert report that was served out of time will cause prejudice to the receiving party.  Here, the trial judge found Ms. I would not be prejudiced by the admission of Dr. R’s report.  She has failed to demonstrate a basis on which to interfere with that finding.  Further, having regard to the complete trial record, I am of the view the admission of that report did not result in an injustice.(Isbister v. Delong,2017 BCCA 340)

Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.

Tags: Expert deadline, Expert Opinion, icbc case examples, Rule 11-6 Service of Expert Reports, Rule 11-7(6) Expert Report Exceptions, Rules of Evidence

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