Today’s guest post comes from B.C. injury claims lawyer Erik Magraken
Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, confirming that articles cited in expert reports are not evidence and outlining how these documents can be used at trial.
In today’s case (Cambie Surgeries Corporation v. British Columbia) the Plaintiffs, who are suing the government of BC arguing certain Provincial health-care laws are unconstitutional, sought to introduce articles and texts cited by their expert witnesses into evidence.
Mr. Justice Steeves provided the following concise and helpful statement addressing the limits and procedural use of such documents:
11] It follows that I do not agree that the plaintiffs can go as far as they would like to go and put in articles through their experts on examination in chief. I adopt the approach in the Sopinka text and add the following procedural requirements:
1. An article or text cited by an expert in his or her report may be identified by the expert and then entered as an exhibit for identification. I emphasize that the article or text has to be cited, but the expert report does not have to specifically state that the expert is adopting the article or text.
2. As part of the examination in chief of the expert he or she may be taken to specific parts of the article or text. These will be read into the record.
3. The expert can use the excerpts to clarify terminology or ambiguities in his or her report or use the excerpts to make the report more understandable, and the expert can adopt the excerpts as his or her own. I acknowledge that, to be more understandable, different reports may require different applications of this approach.
4. The article or text itself will remain an exhibit for identification and is not evidence.
5. Any hearsay issues will be decided as set out in the Mazur judgment.
6. The expert is not permitted to give a new opinion or adopt an opinion other than the one in his or her report.
7. If it is not clear, the expert may be cross-examined on any part of his or her evidence.