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Material Change in Opinion

Why does my lawyer need written reports on my condition?  Can’t they just ask my doctor at trial what kind of care I need?

In a case released this week by the British Columbia Supreme Court, Justice Morellato weighed in on the admissibility of opinion evidence elicited at trial (Jamal v Kemery-Higgins 2017 BCSC 213).  Dr. Anderson, a psychiatrist, had prepared a report for litigation opining on the plaintiff’s psychiatric injuries.  In that report, Dr. Anderson had opined that the plaintiff “may require long-term supportive therapy.”

However, in direct examination of Dr. Anderson, counsel for the plaintiff attempted to elicit further opinion evidence which “would have the effect of changing [his] opinion from the statement that she ‘may’ require long-term supportive therapy to the conclusion that she ‘would’ require long term supportive therapy.”  Justice Morellato found that this change in opinion was material, and therefore inadmissible without a supplementary report:

[124]     In Perry v. Vargas, 2012 BCSC 1537, Savage J. refused to admit a late expert report and, in doing so, reviewed the principles underlying Rules 11-6(6) and 11-7(6).  In regards to Rule 11-6(6), Savage J. stated at para. 9 that it contains an election, whereby a party must determine whether it seeks to rely on an expert report even though there is a material change.  If there is such a change, that “party must promptly serve a supplementary report” [emphasis added].  Notably, Savage J. reasoned:

10        Rule 11-6(6) was not intended to allow experts to add either fresh opinions or bolster reasons upon reviewing for the first time or further reviewing material under the guise of there being a material change in their opinion.  To provide otherwise would surely defeat the purpose of the notice provisions contained in Rules 11-6(3) and 11-6(4) and the requirement of R. 11-7(1)

[125]     Rule 11-7(6)(c) allows the court to admit late expert evidence if it was not available through due diligence, where the non-compliance would be unlikely to cause prejudice, or where the interests of justice require its admission.  In XY Inc. v. International Newtech Development Inc., 2013 BCCA 352 at para. 124, Newbury J.A. for the Court adopted the following statement by Savage J. in Perry at para. 22: 

In my view the discretion provided for 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.  There must be some compelling analysis why the interests of justice require in a particular case the extraordinary step of abrogating the other requirements of the Supreme Court Civil Rules.  None was provided.  [At para. 22.]

[126]     In the instant case, as in Perry, it cannot be said that this new material arose despite the due diligence of the party seeking to tender this new report.  Further, the non-compliance is likely prejudicial to the defendants’ case.  As Savage J. highlighted in Perry at para. 19, delivering reports on the eve of trial is antithetical to the purpose of the Rules governing expert reports, which are meant to ensure that parties are provided reasonable notice of expert opinions.  In the same vein, in Watchel (Guardian ad litem of) v. Tobey, [1997] B.C.J. No. 3150, 33 M.V.R. (3d) 115 (S.C.), Kirkpatrick J., as she then was, excluded a late report in its entirely, which was delivered 12 days before trial because there was insufficient time to obtain any opinion evidence to answer the report. 

[127]     With these cases and facts before me, I am of the view that this material change in Dr. Anderson’s opinion evidence is not admissible, nor would it be in the best interests of justice to admit it. […]