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Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, finding that a party cannot rely on an opposing party’s expert evidence if they fail to ‘re-serve’ the report in the timelines set out in the BC Supreme Court Rules.
 On receipt of Ms. Beattie’s report, the plaintiff did not follow the usual practice of immediately re‑serving Ms. Beattie’s report on the defendant as a report on which he intended to rely. The plaintiff also did not attempt to re‑serve the report as a rebuttal report on which he intended to rely on the 42‑day deadline for doing so under Rule 11‑6(4).
(b) if the expert was appointed by a party under Rule 11-4 … any party of record who is adverse in interest to the party who appointed that expert may, within the demand period referred to in subrule (2) (a) of this rule, demand the attendance of the expert for cross-examination.
 Plaintiff’s counsel did not refer me to any cases which supported his argument.
 In my view, the plaintiff’s argument is just not supported by the rule. The rules with respect to tendering experts’ reports must be read as a whole, and it is the decision of a party to tender an expert’s evidence at trial which triggers the right of the other party or parties to demand the attendance of the expert for cross-examination.
 For example, Rule 11‑6(1) sets out the formal requirements for a report that is to be tendered. Rule 11‑6(3) and (4) sets out the requirements for service and focus on a report that is to be tendered at trial. Rule 11‑6(6) deals with the requirements for a supplementary report in the event the expert changes his opinion with respect to an expert report that is to be tendered at trial. The focus is on tendered evidence.
 The plaintiff has the burden of proving his case. The defendant is not required to prove anything and, as a result, may elect not to call any evidence and no adverse inference can be drawn from the failure to do so.
 As an alternative argument, the plaintiff submits that I should exercise my discretion to waive the 84‑day deadline for delivery of Ms. Beattie’s report to allow the plaintiff to rely on her report and call her as his witness. He submits that the defendant will not be prejudiced as a result of the late delivery of Ms. Beattie’s report, as the defendants are aware of its content and are able to prepare to cross-examine her on short notice.
(c) the interests of justice require it.
 These provisions are disjunctive, so if any one of them applies, then the report in question may be admissible. For that proposition I cite Kaigo Retirement Communities Ltd. v. Sawchuk Developments Company Ltd., 2014 BCSC 1858 at para. 15, and Perry v. Vargas, 2012 BCSC 1537 at para.s 14 to 15.
 In this case, although the plaintiff did not specifically rely on 11‑7(6) or frame his arguments in terms of the reconsiderations in that rule, the plaintiff’s arguments are essentially that the non‑compliance with the 84‑day deadline is unlikely to cause prejudice and the interests of justice require a waiver of the deadline in this case. I accept that the defendant would not be prejudiced in preparing to cross-examine Ms. Beattie. However, I do not consider this an appropriate case in which to exercise my discretion to waive entirely the 84‑day deadline. In my view, the discretion in Rule 11‑7(6) was intended to abridge the timelines in the rules and not to waive them entirely.
 The practice of re‑serving favourable opposing parties’ experts’ reports is not uncommon in personal injury litigation. It was a procedure which was open to the plaintiff in this case. In addition, the interests of justice in this case do not require a waiver. The plaintiff has obtained and is relying on reports from Jeff Padvaiskas, an occupational therapist, and from Niall Trainor, an expert in vocational rehabilitation. Admittedly, Ms. Beattie’s report is more current, but it does not address new issues and would be duplicative. If the plaintiff was concerned about the dates of his experts’ reports, it was open to him to obtain updated reports, and for these reasons, I conclude that the plaintiff should not be permitted to rely on Ms. Beattie’s report.
Reasons for judgement were released today (Pinch v. Hofstee) addressing the scope of expert instructions that need to be disclosed to make expert evidence admissible. In short the Court noted that a “paraphrased summary of instructions” was insufficient.
 The parties presented a number of expert reports. While some of the expert reports attached the instructions that were provided to the expert by counsel, some of the expert reports merely provided a paraphrased summary of instructions.
 Rule 11‑6 of the Supreme Court Civil Rules provides that, for an expert report to be tendered in evidence, it must set out a number of matters including “the instructions provided to the expert in relation to the proceeding” [Rule 11‑6(1)(c)].
 In order to meet the requirement of Rule 11‑6(1)(c), all actual instructions received by the expert should be appended to the expert report that is to be tendered into evidence. It is not sufficient to satisfy Rule 11‑6(1)(c) to have the expert either to paraphrase the instructions received or to include some but not all of the instructions received.
 The parties will be at liberty to file affidavits setting out the instructions that were provided to the experts who have provided reports which have now been tendered into evidence.
Reasons for judgment were released today by the BC Court of Appeal criticizing and restricting the practice of shoehorning physicians consultation reports into evidence as expert opinion.
In today’s case (Healey v. Chung) the Plaintiff was injured in a 2005 pedestrian/vehicle collision. At trial he Plaintiff claimed it was a ‘catastrophic accident’ and sought damages between $485,000 and $1,037,000. The trial judge rejected much of the Plaintiff’s evidence and awarded damages of just over $50,000.
 It is true, as the respondent contends, that Seaman and F.(K.E.) are cases in which the opinion sought to be adduced was found in clinical records that were voluminous, but I do not consider that circumstance detracts from the principle that a clinical record containing an opinion, such as these consulting reports, must substantially comply with the requirements of the Rules in order to attract the exception to the usual rule for examination of witnesses spoken of by Mr. Justice Hutcheon.
 The respondent contends that she gave notice to Mr. Healey of her intention to use the letters, that Dr. Kuo knew of the qualifications of the two doctors, and that other deficiencies were “minor”. She says Mr. Healey was obliged to express his objections as required by R. 11-6(10) and (11).
 Forthrightness between counsel is favoured and is to be expected in litigation. Yet I cannot say there was anything to which we have been referred that put the positive legal duty on Mr. Healey to object under those Rules for the reason that the consulting reports sent to Dr. Kuo and disclosed as part of her clinical records were simply not ‘expert reports’ as regulated by the Rules. While they may be professional opinions from one doctor to another in the course of treatment, the impugned documents do not comply with R. 11-2; I do not consider they carry the basic hallmark of an ‘expert report’, being an opinion intended by the author, at some point, to be presented for the assistance of the court. Significantly, they contain none of the information that is essential to qualification of the author as an expert, nor the information reviewed by the author by which the court may assess the cogency of the opinion.
 As I do not consider that these clinical records can be considered to be ‘expert reports’ as that term is used in the Rules, entitled to the privileged treatment for receipt of hearsay evidence discussed by Mr. Justice Hutcheon, I conclude that R. 11-6(10) and (11) did not require a notice of objection.
(b) any supplementary reports required under Rule 11-5 (11) or 11-6 (5) or (6) have been prepared and served in accordance with Rule 11-6 (5) to (7).
 Ms. Chung does not contend the judge exercised his discretion under R. 11-7(1). Her approach is consistent with the record that shows the judge was not asked to exercise his discretion, and it is consistent with Ms. Chung’s submission at trial which approached the question as one of compliance with R. 11-6. We are invited, however, to approach these documents as admissible in the exercise of discretion.
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.
 Adopting that approach, in my view this is not a case for us to exercise the discretion that was available to the judge under R. 11-7. There was ample medical evidence before the court, absent the opinions from these documents, to guide the trial judge in findings of fact. Further, it was open to the defendant to develop her own body of medical opinion and to advance it in proper form, including as to the required description of qualifications and experience and listing of opinion sought and matters considered. I see no compelling reason to derogate from the requirements of either R. 11-2 or R. 11-6 in this case. To do so, in my view, would admit into evidence opinions that were not crafted for that purpose and that are without the necessary information to permit consideration of their substance and effect in the context of the issues before the court.
 Last, Ms. Chung contends that the two documents, in any event, were inconsequential in the judge’s reasons, and thus the admission of these documents had little impact on the outcome of the case.
 Mr. Healey stated that he suffered from depression because of the accident. Depression was not reported in his post-accident symptomatology until 2008. Dr. Kuo’s records do show that in 2003 she concluded that Mr. Healey had symptoms consistent with depression. This reporting, however, preceded the accident, and according to the psychiatric specialists Dr. Kuo referred Mr. Healey to in 2009 and 2010, no evidence supported any Axis 1 diagnosis in the DSM-IV, and no symptoms met the criteria for post-traumatic stress disorder.
 I would first observe that Dr. Truong’s report cryptically states “Axis 1: Adjustment d/o with depressive symptoms – in remission” and by so saying Dr. Truong’s report appears to be inconsistent with the judge’s statement: “according to the psychiatric specialists [Dr. To and Dr. Truong] no evidence supported any Axis 1 diagnosis”. Perhaps this exemplifies the effect of non-compliance with the requirements for expert reports, as the judge drew from the report a categorical absence of any Axis 1 diagnosis which appears to be inconsistent with Dr. Truong’s report. Setting that discrepancy between the judge’s assertion and the notation in Dr. Truong’s report aside, it is clear from the judge’s para. 58 that he put weight on the consulting reports and drew conclusions from them adverse to Mr. Healey. In other words, they were consequential in the judge’s reasoning; one cannot say the reports had little bearing on the outcome, in my view.
Interesting reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing the scope and timing of objections required under Rule 11-6(10).
 Turning to the question of whether Rule 11-6(10) and (11) applies to objections of qualifications, I conclude that it does.
 In my view, no difference can be drawn between an objection to the admissibility of the report, and an objection to an expert’s qualification with regard to Rule 11-6(10). In order to be admissible, any opinion evidence must come from a properly qualified expert. Qualification is a prerequisite to admissibility.
 The wording of Rule 11-6(10) and (11) is mandatory. In my view, the phrase “objection to the admissibility of the expert’s evidence” necessarily includes objections based on inadequate qualifications of the expert. Indeed, the expert’s qualifications are required to form part of his or her report: Rule 11-6(1)(a) and (b). I find therefore, that the defendant here ought to have given notice of the objections to the expert’s qualifications.
The Court went on to find that, despite the lack of a proper objection, the Court retains “an overriding discretion to admit opinion evidence when the rules have not been followed, or refuse to admit it when there has been compliance.” and that “It is the duty of the trial judge to ensure evidence admitted onto the record is both relevant and admissible but the plaintiff has the burden of establishing that Mr. Myszkowski is qualified as an expert.” whether or not a timely objection was raised.
Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, excluding an expert report for failing to disclose a list of documents reviewed.
 Rule 11-6 (1) states a number of mandatory requirements of an expert report. Dr. David’s report did not contain the certification required under Rule 11-2 (2) though that was remedied at a later date. It does not contain the instructions provided to Dr. David. His report is not clear as to the nature of the opinion being sought and the issues in the proceeding to which the opinion relates. But most importantly it does contain a description of the factual assumptions on which his opinion is based. There is not a comprehensive list of the documents that he relied on. Where he does discuss a document that he relied on he either makes vague, inaccurate or misleading references to that document.
 I am mindful of Rule 11-7 (6) however. The admission of this report will cause prejudice to the plaintiff because despite a very lengthy cross-examination it is not clear what the purpose of Dr. David’s report was and what his factual assumptions were.
 In my view, for all the above noted reasons Dr. David’s report and evidence at the video deposition are inadmissible.
In the first case I have seen addressing this issue, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, striking out language in correspondence between lawyers as an abuse of process.
In today’s case (Walker v. Doe) the Plaintiff objected via letter sent to Defence counsel to the admissibility of Defense expert reports, and as part of the “boilerplate” objections Plaintiff’s counsel noted that “we shall seek sanctions personally against [expert’s name], including but not limited to special costs“.
 Letters sent by counsel to provide notice of objection to the admissibility of an expert report are required to be served pursuant to R. 11-6(10). The notice must set out “any objection to the admissibility of the expert’s evidence that the party receiving the report … intends to raise at trial.” The notice required by the Rule is a document mandated by the Rules in which a party must set out their position for trial.
 Rule 9-5(1) is not limited to pleadings but also applies to petitions and “other documents”. Document is defined in R. 1-1(1) in broad terms. There is no doubt the notice required under R. 11-6(10) is a document pursuant to that definition. However, the word must be interpreted ejusdem generis in the context of the phrase, “pleading, petition or other document”. Applying that aid to interpretation, I conclude that “other document” refers to documents which are required by the Rules to formally set out a party’s position, claim or defence. The notice under R. 11-6 (10) is such a document.
 In conclusion, expert witnesses play an important role in the litigation process. When an expert is properly qualified within an area of expertise and the expert’s opinion evidence, which is not otherwise excluded, meets the essential criteria of relevance and necessity in assisting the trier of fact, it can be admitted to assist the court: R. v. Mohan,  2 S.C.R. 9. The Rules establish a process which provides adequate notice of expert opinions and sets up a way to challenge admissibility. There is no need to introduce into the process, by way of boilerplate language in notices under R. 11-6(10), threats of claims against experts for special costs. As I have already noted, it is entirely unnecessary. Further, it has the potential to frustrate the litigation process because it may discourage the participation of expert witnesses. In addition, and contrary to the intent of the new Rules, it would seem to place the expert in an adversarial position.
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing the scope of document disclosure when dealing with supplementary reports. In short the Court held the same duties apply to supplemental reports as to ‘original’ reports, namely to identify the documents relied on by the expert in forming their opinion.
 A supplementary expert report remains an expert report. It must comply with the rules set out in Rule 11‑6(1). Otherwise, the supplementary opinion would be based on unknown facts and assumptions. It would be impossible to give the necessary weight to a supplementary expert opinion as it would be impossible to compare the facts upon which that opinion was based with the findings of fact ultimately made by the Court. The provision of a supplementary report which does not comply with Rule 11‑6(1) should not be used to circumvent the requirement that no party will be caught by surprise by an expert report.
Reasons for judgement were released this week by the BC Supreme Court, Kelowna Registry, addressing court orders for late defence medical exams.
 There are three rules engaged by this application. The Rules of Court distinguish between new or fresh expert reports and responsive reports. Rule 11‑6(3) provides that, unless the court otherwise orders, expert reports other than responsive reports must be served on all parties of record at least 84 days before the scheduled trial date.
 Rule 11‑6(4) deals with responsive reports and provides that such reports must be served on every party of record at least 42 days before the trial date.
 The third rule engaged by this application is Rule 7‑6, which provides that the court may order a person submit to an examination by a medical practitioner or another appropriately qualified person. An order under Rule 7‑6(1) is discretionary. While there are a host of factors that should be considered when exercising the discretion conferred by that rule, one of the factors might broadly be taken to be whether the examination sought will advance the litigation, in the sense of potentially yielding relevant evidence touching on a material issue.
 Although the evidentiary burden has not been met in this case, I acknowledge that, on occasion, there may be circumstances which might justify the ordering of an independent medical examination, otherwise than in support of the preparation of a responsive report. It may be that, in some cases, the court may anticipate or at least allow for the possibility that a fresh opinion would be exceptionally admissible, notwithstanding that the 84‑day deadline has passed. Although not framed that way in Luedecke, the issue may have arisen at trial after the production of the report that the master ordered. In this case, however, there is no basis to conclude that an independent medical examination is necessary to level the playing field.

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