The Cambie Surgeries Corporation v. British Columbia proceedings ("Cambie"), in which certain sections of the Medicare Protection Act, R.S.B.C. 1996, c. 286, are being challenged on the basis that they are contrary to ss. 7 and 15 of the Charter, has already resulted in a number of instructive evidentiary and procedural rulings. This update summarizes rulings regarding, respectively, the admissibility of lay opinion evidence, expert reliance on scholarly articles or texts, and responding expert reports.
October 26, 2016
By Joel Morris and Ted Murray
Admissibility of lay opinion evidence
In Cambie, 2016 BCSC 1390, the defendants applied to strike out paragraphs of the
affidavit of a representative of an intervenor in the proceedings. In that context, the court provided a useful discussion of when a lay witness may provide opinion evidence.
Generally, a lay witness cannot give an opinion in court on a matter requiring the application of scientific, technical, or specialized expertise; however, in certain circumstances a lay witness may give evidence regarding matters of opinion that do not
require scientific, technical, or specialized expertise, for example, that she or he thought a car was speeding or that a person appeared to be intoxicated. The court stated:
 It is well established that witnesses are to testify about what they observed and not about what they think their observations mean. The latter would be opinion evidence. There are exceptions to this. For example, a witness may say in evidence that she or he thought a car was speeding or that a person appeared to be intoxicated. These are exceptions because they are not considered matters where scientific, technical, or specialized evidence is necessary (American Creek Resources Ltd. v. Teuton Resources Corp., 2013 BCSC 1042 at paras. 14-16).  In some cases, however, opinion evidence is necessary and very helpful. For example, an expert in a medical field may be permitted to provide the court with its opinion about whether a medical condition was caused by a particular event. In the case of expert evidence there are requirements of notice under the Supreme Court Civil Rules, B.C. Reg. 168/2009 [Rules] and the expert must be qualified as such. A lay witness cannot give an opinion in court on a matter requiring the application of scientific, technical, or specialized expertise. The court adopted the following passage from Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 3rd edition, stating:
 As might be seen, there are some grey areas here and these have been commented on as follows:
Courts now have greater freedom to receive lay witnesses' opinions if: (1) the witness has personal knowledge of observed facts; (2) the witness is in a better position than the trier of fact to draw the inference; (3) the witness has the necessary experiential capacity to draw the inference, that is, form the opinion; and (4) the opinion is a compendious mode of speaking and the witness could not as accurately, adequately and with reasonable facility describe the facts she or he is testifying about. But as such evidence approaches the central issues that the courts must decide, one can still expect an insistence that the witnesses stick to the primary facts and refrain from giving their inferences. It is always a matter of degree. As the testimony shades towards a legal conclusion, resistance to admissibility develops.
(Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 3rd ed. (Markham, Ont.: LexisNexis Canada, 2009), at 12-14; cited in American Creek Resources Ltd.at para. 14.)
Expert reliance on scholarly articles or texts
In Cambie, 2016 BCSC 1739, an issue arose as to whether a scholarly article or text
cited in an expert report could be put to an expert in direct examination, entered as an
exhibit at trial, and become evidence at trial, in other words, be relied upon to prove the
truth of its contents. The court held that a scholarly 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; however, the article or text itself will remain an exhibit for identification and
is not evidence. The court stated:
 Returning to the specific issue here, as part of their opinions experts often include cites of, for example, learned articles. Unfortunately, the use of cites in scholarly articles does not always match the presentation required of expert reports in court. Experts are entitled to use hearsay, subject to the constraints set out in a number of decisions, including R. v. Lavallee,  1 S.C.R. 592; R. v.Abbey,  S.C.R. 24; and the Court of Appeal decision in Mazur v. Lucas, 2010 BCCA 473.
 As I understand it, there is no objection to experts attaching an article to his or her report since the other parties have notice. As well, experts are sometimes cross-examined on articles used in reports and then the article can be put in as an exhibit. While the entire article goes in, it is generally only for the point raised in cross, and that approach is consistent with the broader scope of cross-examination of experts compared to evidence in chief. The crossexamination of experts has also been discussed in other decisions so that, for example, an expert is entitled to acknowledge as authoritative something cited
but cannot be questioned about what he or she does not acknowledge (R. v. Morguard,  4 S.C.R. 223, at para. 56; Cansulex v. Reed Stonehouse Ltd.,  B.C.J. No. 3174 (SC), at para. 8).
The court adopted the approach in Sopinka, Lederman and Bryant, Law of Evidence in
Canada, 4th edition, stating:
 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.
This is consistent with Mr. Justice Major's observation in R. v. D.D.,  2
S.C.R. 275 at para. 55:
Additional dangers are created by the fact that expert opinions are usually derived from academic literature and out-of-court interviews, which material is unsworn and not available for cross-examination. Though not properly admissible as evidence for the proof of its contents, this material generally finds its way into the proceedings because "if an expert is permitted to give his opinion, he ought to be permitted to give the circumstances upon which that opinion is based" (R. v. Dietrich (1970), 1 C.C.C. (2d) 49 (Ont. C.A.), at p. 65). In many cases, this material carries with it prejudicial effects which require special instructions to the jury (Abbey, supra, at p. 45).
Responding expert reports
In Cambie, 2016 BCSC 1822, the plaintiffs sought to examine an expert on a reply
report prepared by that expert after the conclusion of the defendants' case and to call
rebuttal expert evidence at the end of the defendants' case.
The court first distinguished between (a) expert reports under Rule 11-6(3), (b)
responding (or reply) reports under Rule 11-6(4), and (c) rebuttal evidence (or rebuttal
 As a first comment, some precision in the language is required. The expert report at issue is a responding or reply report as described under R. 116(4). It is not an expert report under R. 11-6(3). Rebuttal refers to something else again: the introduction of evidence at the end of a trial, usually that could not have been anticipated before the trial. I add that there is no issue with respect to an expert report under R. 11-6(3); the plaintiffs accept that evidence in chief on that report is not rebuttal evidence.
The court held the plaintiffs were required to call and exhaust their expert evidence as
part of their case, including both expert reports and responding reports. A responding
report is not rebuttal evidence in the sense that it is responsive to unanticipated
evidence. The court ruled:
 The plaintiffs say it would be unfair for them to have to put in their reply expert evidence before hearing the evidence that is the subject of the reply. However, a reply report is responding to a known expert report, the latter being under R. 11-6(3). It is not replying to the cross-examination of the R. 11-6(3) report. The defendant can and should put to the plaintiffs' experts any contrary views of the defendant's experts (although it is an interesting point whether Browne v. Dunn (1893) 6 R. 67 (H.L.) would have the usual force given the advanced notice that is required for expert reports). ...  Overall I conclude that, while it is always open to a party to apply to apply to call rebuttal evidence, a responding expert under the Rules is quite a different part of a trial. In short, a responding expert report is not rebuttal evidence in the usual sense of being in response to unanticipated evidence. In my view, as with all anticipated evidence, the plaintiffs must call and exhaust their evidence. This is paraphrasing of the judgement in Commercial Electronics v. Savics, 2011 BCSC 162. The plaintiffs will examine their expert witnesses about their reports, including responding reports as part of their case.
THIS UPDATE PROVIDES A REVIEW OF CASE LAW AND EMERGING ISSUES IN CIVIL LITIGATION IN BRITISH COLUMBIA. THESE SUMMARIES ARE NOT LEGAL OPINIONS. READERS SHOULD NOT ACT ON THE BASIS OF THESE SUMMARIES WITHOUT FIRST CONSULTING A LAWYER FOR ANALYSIS AND ADVICE ON A SPECIFIC MATTER.
Through our Civil Litigation Update Ted and I provide summaries of recent cases of interest to civil litigators in British Columbia.
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Joel Morris 604.895.2887 firstname.lastname@example.org
Ted Murray 778.863.9430 email@example.com