LAW 469-002 Civil Procedure Week 12: Admissions, Expert Evidence, and Standing

1. LAW 469-002 Civil Procedure Week 12: Admissions, Expert Evidence, and Standing Gavin Cameron March 28, 2019

2. Introduction True story Bill Berardino, Q.C.’s impromptu intervention before Mackenzie J. Common theme: “whether its value is worth what it costs” R. v. Mohan

3. Takeaways • Notices to admit • Expert evidence • Requirements for admissibility • Procedural requirements • Ethical issues • Standing • Public interest standing • Intervention

4. Admissions: Why, How, and What? • Importance: narrow and define the issues; can serve as the basis for an order dismissing the claim or granting judgment • How made: • in response to a Notice to Admit or the failure to respond to one (a deemed admission) • in pleadings • by evidence (a party’s statements on discovery or in affidavit) • Effect: to bind the party for purposes of the action • Scope of R. 7-7: • Sets out procedures for Notices to Admit, including consequences of failure to respond • Governs withdrawal of certain forms of admissions

5. Notices to admit • Governed by R. 7-7 • Request to opposing party to admit, for the purposes of the action only, the: • Truth of a fact • Authenticity of a document • Means of narrowing the issues at trial and dispensing with proof • Not strictly a discovery device, but provides a procedure for requesting admissions of fact • R. 7-7(1): • In an action in which a response to civil claim has been filed, a party of record may, by service of a notice to admit, request any party of record to admit, for the purposes of the action only, the truth of a fact or the authenticity of a document • When available: only in an action; only once pleadings have been exchanged

6. Notice to Admit – Form 26 • Form 26 (Rule 7-7 (1) ) • [Style of Proceeding] • NOTICE TO ADMIT To: ......................[party(ies)]...................... TAKE NOTICE that the ......................[party(ies)]......................, ......................[name(s) of party(ies)]......................, requests the ......................[party(ies)]......................, ......................[name(s) of party(ies)]......................, to admit, for the purpose of this proceeding only, the facts set out below and the authenticity of the documents referred to below, copies of which are attached. AND TAKE NOTICE that, unless the court otherwise orders, if the party to whom this notice is directed does not serve a written statement, as provided in Rule 7-7 (2) of the Supreme Court Civil Rules, within 14 days after service of a copy of this notice on him or her, then the truth of the facts and the authenticity of the documents will be deemed to be admitted. Date: ................[dd/mmm/yyyy]................. The facts, the admission of which is requested, are: [Set out facts, using a separate numbered paragraph for each fact requested to be admitted.] 1 … 2… The documents, the authenticity of which admission is requested, are: [List documents and attach copies of the documents to this notice to admit.] 1 … 2 …

7. Notices to admit (cont.) • Discretionary costs consequences if unreasonable refusal denial or refusal to admit a fact • Court may order the party who refused to make the admission pay the costs of proving the fact or document • May also award as a penalty additional costs or deny costs • See Henry decision from last week. • Required to respond by giving reasons for refusal to admit • Salutary rule that prevents pro forma denials • Same idea now adopted under R. 7-1(11) and (12)

8. Avoiding a Deemed Admission • To avoid a deemed admission - R. 7-7(2) • Must respond to NTA within 14 days by delivery of a written statement • Must specifically deny • Must provide explanation of why the admission cannot be made • Identify where a refusal to admit is made on the grounds of privilege or irrelevancy or that the request is otherwise improper

9. Notices to admit (cont.) • Failure to respond in time or non-compliant response can result in deemed admissions – and judgment • Arsenovski; Finch • Can apply to withdraw a judicial admission (R. 7-7(5)) • Admission made in response to a notice to admit, a deemed admission or in a pleading • Test is interests of justice • Party can apply for judgment on an admission • R. 7-7(6)

10. Arsenovski v. Bodin • Defence counsel’s office receives a notice to admit on Sunday August 28. Office error, counsel didn’t receive it until September 20; prepares and forwards a reply September 23. • Applies to withdraw an admission. Multi-factor test; is there a triable issue? Is the fact untrue? Would there be prejudice? Has there been undue delay? • Court allows withdrawal, noting “If the defendants’ reply is not permitted to be filed, then the triable issues between the parties addressed in the notice to admit will be disposed of by the far-reaching deemed admissions, not by a trial on the merits of the case.” • Note reference to Piso, where “plaintiff’s counsel, upon receiving a notice to admit, put it in his file and forgot about it”

11. Piso [23] There is no question in my mind that the failure in this case was a sloppy, inadvertent and possibly even negligent failure on the part of former counsel for the plaintiff. I am satisfied that the plaintiff himself cannot be faulted in any way for the oversight; he had neither actual notice of the document in question from his lawyer nor an opportunity to provide a reasoned and considered response. [24] The refusal of leave to withdraw these admissions will deny the plaintiff his opportunity to have his claim heard on the merits. The argument that the plaintiff can have his relief by way of a professional negligence claim against his former counsel fails to recognize the further delay and expense of such a claim. In the context of proportionality such an option does not seem appropriate from a financial or court resource prospective. [25] In my view this is precisely the type of situation which warrants an order allowing the withdrawal of a deemed admission while providing for the other party in costs and other accommodations. [27] Nothing which I have said herein should in any way be seen as being critical of defence counsel... They took appropriate action under the rules to pursue their client’s interests...

12. Finch v. Anderson • Negligence and liability admitted in Response to Civil Claim. • Discoveries held months later, and Defendants say new facts were learned which raised doubt as to whether that admission was correct. • Same test governs leave to withdraw an admission in a pleading (see para. 20). • Withdrawal of admission allowed: • Issue not purely factual, and evidence from discovery cast some doubt on it. • Witnesses had been interviewed, so no prejudice • Only 18 months post-accident. • “Preferable that there be a full investigation of the merits of this case” rather than judgement by default.

13. Expert evidence • Governed by R. 11 and the Evidence Act • Exception to the general rule against opinion evidence – usually evidence only admissible to establish facts. • Purpose is to assist trier of fact in a field outside general knowledge or ordinary human experience • Admissibility depends on: • Relevance • Necessity • Absence of any exclusionary rule • Properly qualified expert • R. v. Mohan [1994] 2 S.C.R. 9 (Walker, p. 478)

14. Expert evidence (cont.) • Trial judge serves a gatekeeper function by assessing threshold reliability of the expert evidence; ultimate reliability is for trier of fact • Like hearsay • Considerations recommended in the Goudge Inquiry into Pediatric Pathology in Ontario (2008) • See Walker, pp. 390-91

15. Expert evidence (cont.) • No longer “ultimate issue” rule; concern remains that expert must not displace the role of trier of fact • Must not find facts • Important to be clear what facts and assumptions expert relied on • Must be independent and objective • Must not be argumentative or an advocate for the party who retains expert • Yewdale v. Insurance Corporation of British Columbia

16. Types of experts • Party-appointed experts • Joint experts • Requires agreement to settle the terms of appointment or the court can do so • R. 11-3 • Court-appointed experts • Tension between this and adversarial system • Occurs but very unusual • R. 11-5 • Consulting experts • Panels of experts: “Hot tubbing”

17. Experts – The Rules • The procedures relevant to the use of expert reports are governed by R. 11. • The rules concern procedural matters as opposed to matters of substance (procedural admissibility vs. substantive admissibility). • If you intend to adduce expert evidence, follow these rules: • Application of the rule: R. 11-1 • Duty of the expert: R. 11-2 • Appointment of the Expert: Rules 11-3, 11-4 and 11-5 • Content of reports: R. 11-6 • Use of expert evidence at trial: R. 11-7

18. Requirements of Expert Reports – Rule 11-6 • Requirements of Expert Reports: R. 11-6 • The contents of the report are dictated by: R. 11-6(1) • Service of Expert Reports: • A report must be served at least 84 days before trial: R. 11-6(3) • Responsive reports must be served 42 days before trial: R. 11-6(4) • Material changes to the opinion of the expert must be made by Supplementary Report served on the other parties and must set out the changed opinion and reason for it: R. 11-6(5)-(7) • Objections to admissibility must be made on the earlier of the trial management conference (TMC) or 21 days before trial: R. 11-6(10)-(11)

19. Contents of a Report: Lozinski v. Maple Ridge, 2015 BCSC 2565 • 66 page report. 1 page of substance, 62 pages of appendices. Opinions not clearly distinguished from facts and assumptions, nor are assumptions necessary to the opinion distinguished from background or facts within the expert’s own knowledge from tests or examinations. • What is required? • (a) the expert's name, address and area of expertise; • (b) the expert's qualifications and employment and educational experience in his or her area of expertise; • (c) the instructions provided to the expert in relation to the proceeding; • (d) the nature of the opinion being sought and the issues in the proceeding to which the opinion relates; • (e) the expert's opinion respecting those issues;

20. Lozinski (Continued) • What is required (continued) • (f) the expert's reasons for his . . . opinion, including • (i) a description of the factual assumptions on which the opinion is based, • (ii) a description of any research conducted by the expert that led him or her to form the opinion, and • (iii) a list of every document, if any, relied on by the expert in forming the opinion. • Court finds that the information required by R. 11-6(1) is essential for a trial judge to determine admissibility and the weight to be accorded to the opinion. None of that was present here. • A “do-over” was allowed – but was credibility already damaged? Will it be the subject of cross in a different trial down the road?

21. Requirements of Expert Reports – Rule 11-6 (Cont.) • Production of the material relied on by the expert (expert’s file) is governed by R. 11-6(8): • (a) The expert must disclose upon request of any party of record: • Written statement of facts • Independent observations • Data • Results of tests • (b) The expert must disclose upon request of any party of record, the contents of the expert’s file relating to the preparation of the opinion: • Promptly after receipt of the request if made less than 14 days before trial, or • At least 14 days before trial

22. Expert Evidence at Trial: R 11-7 • Is limited to evidence contained in an expert report, served in accordance with the rules, including delivery of Supplementary Reports, if any: R. 11-7(1) • If no one requires attendance for cross, the report becomes evidence at trial subject to the Court ordering otherwise, subject always to admissibility: R. 11-7(2) • A party may require the expert’s attendance for cross-examination: R. 11-7(3) (request should be made within 21 days of service: R. 11-7(2)) • The expert can testify if: • a request was made to cross-examine the expert, or • if the expert’s report was properly served and the evidence of the expert is necessary to clarify terminology or make the report understandable to the court (in order words, you can only call your own expert in direct for this limited purpose): R. 11-7(5)

23. Expert Evidence At Trial: R 11-7 (Cont.) • Exception to Part 11: R. 11-7 • The court may dispense with requirements of Part 11 if: • New facts come to the knowledge of one or more of the parties that could not have been learned through due diligence. • There is no prejudice. • The interests of justice require it. • Healey v. Chung – strict test, must be compelling reasons to depart from the basic rules governing expert evidence. • Clinical consult reports; importance of the essential elements of what makes an expert report an expert report actually being present (see para. 20).

24. Expert evidence: particular issues • Expert’s duty to the court now legislated and certification required – hired guns? • White Burgess: • “expert witnesses have a duty to the court to give fair, objective and non-partisan opinion evidence. They must be aware of this duty and able and willing to carry it out. If they do not meet this threshold requirement, their evidence should not be admitted. Once this threshold is met, however, concerns about an expert witness’s independence or impartiality should be considered as part of the overall weighing of the costs and benefits of admitting the evidence.” • Procedural issues • Primacy of case planning • Cannot call an expert if not provided for in case plan order • Limits on the numbers of experts and areas of expert evidence • R. 5-3(1)(k)

25. Expert evidence: particular issues (cont.) • Ethical issues and the role of counsel • Woodshedding, opinion shopping, and hiring a gun. • Counsel’s role in instructing and preparing expert witnesses – Moore v. Getahun, 2015 ONCA 55 • It is not only appropriate but essential for counsel to consult and collaborate with expert witnesses in the preparation of expert reports. Counsel must explain to experts their duties to the court, clarify the relevant legal issues, and assist experts in framing their reports in a way that is comprehensible and responsive to the pertinent legal issues in a case: Moore at para. 62. • Practical: delivery of the expert’s report waives privilege. What’s in that file?

26. Expert Evidence: Ethical Issues (Cont.) • Conseil scolaire francophone, 2014 BCSC 851. Province objected to admissibility on the grounds of lack of impartiality and independence. Witness explained she met with counsel several times to review work. She said their input was limited to suggestions for clarification, and did not influence or dictate substance. Court made several points: • it is "quite proper" for counsel to provide some feedback on the form of an expert report to ensure that the evidence is useful to the court; • the law does not require counsel or experts to maintain records of their involvement in the event they may be called upon to dispel allegations of bias at some point in the future, nor should any suspicion of improper involvement arise if counsel do not retain such records; and • counsel should not be required to file and serve affidavits with respect to their involvement in the preparation of an expert report to dispel any allegations of wrongdoing, and similarly, a decision not to file an affidavit should not give rise to a suspicion of impropriety by counsel.

27. Standing • Addresses threshold questions: • Who is entitled to sue? • To enforce what rights? • Standing requires a “sufficiently” direct or genuine interest that the court will recognise • Related to justiciability • Court will generally refuse to decide moot or academic questions • Political questions doctrine • Gate keeping decision

28. Standing (cont.) • Downtown Eastside Sex Workers: • The law of standing answers the question of who is entitled to bring a case to court for a decision. Of course it would be intolerable if everyone had standing to sue for everything, no matter how limited a personal stake they had in the matter. Limitations on standing are necessary in order to ensure that courts do not become hopelessly overburdened with marginal or redundant cases, to screen out the mere “busybody” litigant, to ensure that courts have the benefit of contending points of view of those most directly affected and to ensure that courts play their proper role within our democratic system of government: Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607, at p. 631. The traditional approach was to limit standing to persons whose private rights were at stake or who were specially affected by the issue. In public law cases, however, Canadian courts have relaxed these limitations on standing and have taken a flexible, discretionary approach to public interest standing, guided by the purposes which underlie the traditional limitations.

29. Standing (cont.) • Public interest standing may be available; discretionary • Test requires: • Serious issue as to the validity of legislation • Applicant directly affected or has a genuine interest in legislation’s validity • No other reasonable and effective way to bring the issue of validity before the court

30. Standing (cont.) • “Standing Trilogy” • Thorson (challenge to Official Languages Act) • McNeil (theatre censorship provisions) • Borowski (challenge to exculpatory provisions of Criminal Code governing abortions) • Policy considerations • Allocation of scarce judicial resources • Screening out busybodies • In deciding issues, courts should have benefit of contending points of view of those most directly affected • Concern about the proper role of courts in relation to legislatures

31. Standing (cont.) • Policy considerations • “It would be disastrous if the courts were allowed to become hopelessly overburdened as a result of the unnecessary proliferation of marginal or redundant suits brought by well-meaning organizations pursuing their own particular cases certain in the knowledge that their cause is all important.” This factor is not concerned with the convenience or workload of judges, but with the effective operation of the court system as a whole. • “[t]he idle and whimsical plaintiff, a dilettante who litigates for a lark, is a specter which haunts the legal literature, not the courtroom”

32. Standing cases Canadian Council of Churches v. The Queen Canadian Bar Association v. British Columbia Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence 2012 SCC 45

33. Intervention • Discretionary permission to participate (“intervene”) not as a party • Test • Direct interest; or • Useful contribution that is different than the parties • Concerns • Intervenors not to take the litigation away from the parties • Adding to or changing the record • Causing parties additional costs • More common on appeal and where public law issues involved

34. Intervention cases PHS Community Services Society v. Attorney General of Canada 2008 BCCA 441 (not in materials)