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Expert Report Ruled Inadmissible – Lack of Compliance with Rules to Blame

The Rules are there for a reason. So said Mr. Justice Wilson in the course of ruling inadmissible an expert report tendered by the defendant in the case of Turpin v. Manufacturers Life Insurance Company, 2011 BCSC 1159. The report, used in a travel insurance case, was held to have violated many of the provisions of Rule 11-6 of the Supreme Court Civil Rules (the rule dealing with the use of expert witnesses), as well as the so-called “ultimate issue rule”. Of note, the Court ruled that expert qualifications must relate to the matter at issue in the trial and not simply sound in the abstract.

Expert Qualifications in Insurance Case

The tendered report failed to adequately set out the expert’s area of expertise and qualifications. On that point, the Court said as follows:

[10] Prior to the advent of the “report as direct evidence” regime, there was an onus on a party proposing to tender opinion evidence to prove that the proposed witness was a “qualified expert”. To that end, a voir dire was conducted to canvass the qualifications of the proposed witness to state an opinion, or opinions, on a precisely defined area of expertise.


[11] Unless and until the proposed witness was declared qualified, by the court, and the subject of the opinion, or opinions, to be stated was, or were defined, the witness was not permitted to testify.


[12]In my opinion, the Supreme Court Civil Rules of 2010 did not change that onus.


[13]The information provided in this report is not compliant with the above noted sub-rules.

[14] As a lay person, the words “internal medicine” alone, do not assist me in my task in determining whether or not this proposed witness can be held to be a “qualified expert”. To be told that the witness completed a residency in internal medicine and is “doing internal medicine on the Clinical Teaching Unit” does nothing to advance the inquiry.

[16] It does not necessarily follow that, assertion of qualifications, yields a finding that the witness is a “qualified expert”.


[17] Further, the finding, in the abstract, that one is a “qualified expert” does not end the inquiry. The court must go on to define the very topic upon which the proposed witness will state their opinion, or opinions.


[18] In this case, this proposed witness was — “…asked to provide an opinion as to whether Ms. Turpin’s medical treatment between October 5, 2007 and October 9, 2007 was the result of a pre-existing condition as defined in the Travel Insurance policy, and whether that condition was stable and controlled within the meaning of the policy in the ninety (90) day period prior to her trip.”


[19] There is nothing in the report which suggests that this proposed witness has any expertise in assigning definitions to terms in travel insurance policies.


The report was also criticized for failing to identify what was “reviewed” by the expert in coming to her opinion, nor did it identify the “literature” she relied upon, in contravention of Rule 11-6(1)(f)(iii).


Formatting Faux Pas in Insurance Case


The report also contained bold font and the author had italicized portions of her report. The Court objected to the use of formatting as a way of creating emphasis:


[31] In Warkentin v. Riggs, this court was faced with an expert’s report which adopted “… a particular format”:
He uses bold font to highlight words and phrases which benefit the plaintiff’s claim and support his diagnosis. This is apparent in his review of Ms. Warkentin’s history and medical reports. That which is contrary to the plaintiff’s claim or does not support his diagnosis is either omitted or presented in non-bolded font. This emphasis in support of the plaintiff’s claim and the exclusion of contrary matters is advocacy.
I adopt those comments as applicable in this case.


[32] This use of emphasis is not a practise to be encouraged. In this case, it may have been introduced by counsel’s letter of instructions, which suggested that the author may “indicate the relative degree of importance of any particular fact or assumption”.


[33] If the author of the report regards a factor as a major premise leading to the conclusion, then it should be so stated. Not left to unexplained emphasis in the body of the report.


Ultimate Issue Rule in Insurance Case

Mr. Justice Wilson also held that the expert report violated the ultimate issue rule for not only suggesting an answer to the issues at the core of the dispute but actually answering them. On this point, the Court said the following:

[23] The current law was stated by McLachlin J. (as she then was) in R. v. Burns, as follows:


The respondent does not argue that psychiatric evidence bearing on a witness’s behaviour is for that reason inadmissible. His objection is that “the opinion of Dr. Maddess went to the very root of the issue before the learned trial judge” and that “allowing that opinion usurped the function of the trial judge”: the so-called “ultimate issue rule”. However, the jurisprudence does not support such a strict application of this rule. While care must be taken to ensure that the judge or jury, and not the expert, makes the final decisions on all issues in the case, it has long been accepted that expert evidence on matters of fact should not be excluded simply because it suggests answers to issues which are at the core of the dispute before the court: Graat v. The Queen,[1982] 2 S.C.R. 819. See also Khan v. College of Physicians and Surgeons of Ontario, (1992), 9 O.R. (3d) 641 (C.A.), at p. 666 (per Doherty J.A).


[24] In this case, the proposed witness does not “suggest” answers to issues before the court, the proposed witness answers the very question this court is called upon to decide.

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