1. Legal Update: Dispute Resolution, Expert Reports and Claims for Contribution and Indemnity May 29, 2014 Presented by: Craig A. Wallace, P.Eng. and Vanessa L. Reakes

2. Dispute Resolution: The Civil Resolution Tribunal Act  Civil Resolution Tribunal Act came into force May 2012  The online Tribunal is expected to begin operations fall 2014 Jurisdiction  The Tribunal will have the authority to adjudicate disputes that would otherwise come under the Small Claims jurisdiction (debt, damages, recovery of personal property, specific performance and strata disputes)  Damages are capped at $25,0000

3. Online Tools  An online negotiation tool guides the parties through a structured negotiation phase  If negotiation is not successful, the parties will move into case management and mediation  If mediation is not successful the online system will automatically move to an adjudication phase  Most cases will be decided based on evidence and arguments submitted through the Tribunal’s online system  Adjudicators have discretion to conduct a telephone or video hearing, and, in rare situations, hold in-person hearings

4. Expert Evidence Duty of expert witness  In giving an opinion to the court, an expert has a duty to assist the court and is not to be an advocate for any party  an expert must, in any report he or she prepares, certify that he (a) is aware of this duty (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 Disclosure of Expert Materials  If a report is served for the purposes of trial, the party who served the report must, if asked to do so, produce the contents of the expert's file relating to the preparation of the opinion set out in the expert's report  Similar rules apply in Ontario

5. The Experts File  Once an expert is produced for trial, he or she must disclose their file, inclusive of all documents that are or may be relevant to matters of substance to the opinion or credibility: When an expert witness who is not a party is called to testify, or when his or her report is tendered in evidence, he or she may be required to produce all documents in his or her possession which are or may be relevant to matters of substance in his or her evidence or credibility, unless it would be unfair or inconsistent to require such production…Once an expert has become a witness she offers her professional opinion to assist the court and must no longer be in the camp of a partisan. She should have nothing to hide and be willing to have her opinion tested by offering up documents relevant to the preparation and formulation of her opinions, as well as to her consistency, reliability, qualifications and other matters touching on her credibility. (Vancouver Community College v. Phillips, Barratt (1987), 20 S.C.L.R. (2d) 289 ( S.C.)

6. Scope of Expert Disclosure  The scope of disclosure of an expert's file turns on the interpretation of the phrase "relating to the preparation of the opinion set out in the expert's report".  The ordinary meaning of those words suggests that aspects of the expert's file that clearly do not relate to the preparation of the opinion, do not need to be disclosed.  See, for example, First Majestic Silver Corp. v. Davila, 2012 SCC 1250 which considered whether experts should be required to produce notes they made while observing court proceedings prior to giving evidence. In this case a distinction is drawn between the role of an expert when providing his opinion to the court and when acting as an adviser to counsel.

7. Scope of Expert Disclosure and Report Preparation  The Ontario Superior Court decision in Moore v. Getahun, 2014 ONSC (under appeal) may have a significant impact on the manner in which expert reports are prepared Facts  Plaintiff suffers from “development compartment syndrome” allegedly caused by negligent medical treatment  Defence medical expert prepares a draft report and sends it to counsel for comments  Expert file is produced for trial which includes draft reports as well as the notes in relation to a 1 ½ hour telephone conference with defence counsel  At trial, defence expert suggests amendments consisted of the addition of headings and punctuation. Court concludes the meeting between the expert and his counsel addressed more than simply superficial cosmetic changes. In particular, the Court notes deletions and modifications to some content that was helpful to the plaintiff.

8.  Justice Wilson found that while the expert’s opinion did not change as a result of the discussions with counsel, counsel’s suggestions certainly helped shape the ultimate report: The expert’s primary duty is to the court. In light of this change in the role of the expert witness under the new rule, I conclude that counsel’s practice of reviewing draft reports should stop. There should be full disclosure in writing of any changes to an expert’s final report as a result of counsel’s corrections, suggestions, or clarifications, to ensure transparency in the process and to ensure that the expert witness is neutral.

9.  In ruling the doctor's report inadmissible, the court said: Dr. Hunt’s perceived role is amply demonstrated in his report. The format he uses is designed to emphasize matters which support the plaintiff’s claim and his diagnosis. Dr. Hunt presents the medical literature in a manner than suggests that there is consensus about the casual connection between motor vehicle accidents and the onset of fibromyalgia. He attempted to mislead the court regarding the medical literature and omitting portions which do not. … Dr. Hunt’s report of March 27, 2009 is likely to distort the fact-finding function of the trier of fact, and therefore its prejudicial effect far outweighs its probative value. I find that it is inadmissible.  In a recent BP personal injury case, Warkentin v. Riggs, 2010 BCSC 1706 the trial judge found the plaintiff's medical expert to be an advocate on behalf of the plaintiff, rather than "neutral and impartial expert providing assistance to the court".

10. Potential Fallout from Moore/Warkentin  The condemnation of the practice of counsel reviewing reports with experts, intended to avoid the shaping of expert opinions by counsel, ignores the legitimate purposes for reviewing and addressing concerns in expert reports. These include: Where experts may have made errors of fact in a draft report. Where experts may have commented on issues that are outside the scope of their expertise. Where experts may have made comments which may be open to interpretation or which appear to convey an unintended meaning… or the meaning is unclear. Where experts may have offended the rules of admissibility of the report. Where experts have not qualified their opinions or acknowledged contrary facts or opinions.

11. The Mediation Dilemma  Counsel frequently deliver opinions for the purposes of mediation on a “without prejudice” basis.  Question: If the expert revises his mediation opinion for trial, is the earlier “without prejudice” opinion producible as part of the experts file?  Answer: The mediation report is likely a producible document.

12. The Mediation Dilemma  Except for aspects of an expert’s file that clearly do not relate to the preparation of the opinion set out in the report, an expert’s file must be produced (Conseil Scolaire Francophone de la Columbie-Britannique v. British Columbia Education, 2014 BCSC 741).  In most cases a mediation report will relate to the preparation of the trial report.  To avoid this disclosure requirement but still obtain the needed advice from experts, counsel might consider retaining one expert for the purpose of mediation and one expert to give evidence for trial. This approach, however, will multiply costs.

13. Settlement Privilege and the “Without Prejudice” Report  Question: If a mediation expert is dumped after mediation, is his mediation report still producible?  Answer: Maybe  To fall within the ambit of settlement privilege and be a true “without prejudice” communication, the following conditions must be present:  The document must be created in contemplation of litigation  The communication must be made with the express or implied condition that it will not be disclosed if negotiations fail  The purpose of the document must be to attempt to effect settlement

14. Settlement Privilege and the “Without Prejudice” Report Unlike settlement offers, expert reports do not owe their existence to settlement negotiations  When a decision is made to disclose a report for mediation, the report will lose the status of litigation privilege. Attempts to earmark the disclosure as “without prejudice” will generally be in vain (Gay v. UNUM Life Insurance Co. NSSC, 2003) VS.  Where a report is prepared for the dominant purpose of litigation, it remains privileged despite earlier disclosure at mediation (Vander Laan v. LSMR Developments, BCSC, 2012)

15. Third Party Claims for Contribution & Indemnity  A claim for contribution or indemnity must be made:  By counterclaim, if the claimant is a defendant who claims from a non-party  in any other case, whether or not the person against whom the claim is to be made is a party to the action, by third party notice.  A party must file a third party claim within 42 days of being served with a notice of civil claim  If the third party claim is not filed within 42 days of being served with a notice of civil claim, the claimant must obtain leave of the court.

16. Claims for Contribution/Indemnity In what circumstances should you seek contribution and indemnity?  Where two or more persons are responsible for causing an indivisible loss to a plaintiff (distinct injuries will result in several liability) AND 2.The duties alleged belong to someone other than the plaintiff: The authorities establish that where a plaintiff contracts with two separate parties, such as a contractor and an engineer, and later sues one of them, the one sued cannot claim contribution or indemnity from the other on the ground that the other failed to properly execute his duties, where the substance of the third party claim can be raised against the plaintiff by way of defence (WorleyParsons Canada Ltd. v. David Nairn and Associates BCCA, 2013)