“Third one’s the charm”? – not when it comes to experts!

Authors: Jim Cheng & Marianna Pozdirca 

“Justice delayed is justice denied.” This legal maxim haunts the Canadian legal system, where court resources are thin and delays result in hundreds of cases being stayed (i.e., discontinued as continuation would bring the judicial system into disrepute).[1] In response to this, legislatures are bringing in limits on how many expert witnesses or reports may be brought into a lawsuit. For example, section 7 of the Canada Evidence Act limits each party in a trial or other proceeding, criminal or civil, to calling at most five experts as of right, while more may be granted by the federal court.[2] Provincially, legislation such as The Manitoba Evidence Act set the limit at three per side.[3] In Alberta, the legislature recently introduced a “three-expert” rule for all motor vehicle injury proceedings where the claim was over $100,000, while cases where the claim is under $100,000 can only bring forward one, single expert.[4]

What drives such scarce limitations on expert evidence? During Alberta’s legislative debates on Bill 41, The Insurance (Enhancing Driver Affordability and Care) Amendment Act, 2020, which enshrined these limits, the Bill’s sponsor claimed, “We believe the limits on the number of experts used in automobile-related bodily injury litigation will help reduce costs for all parties in a dispute and help resolve matters more efficiently and timely.”[5] Legislators that bring in such provisions would have us believe that this is done in the name of efficiency, timeliness, and cost-effectiveness, but, in fact, it puts lawyers and their clients in a difficult bind. Expert limits increase the risks of unethical decision-making in the name of efficiency and might altogether be more costly and time-consuming for the legal system.

EXPERT LIMITS INTERPRETED BY COURTS

Three years after the Alberta legislature passed Bill 41, the Alberta courts had their first opportunity to interpret the “three-expert rule.” In Norris v Vomacka (“Norris”), the Plaintiff, Mr. Norris, was injured in a motor vehicle accident and alleged that he suffered from various physical and psychological issues such as chronic pain, balance issues, and psychological injury as a direct result of the accident.[6] Mr. Norris sought general damages of $150,000 as well as an undefined amount associated with the loss of income due to his diminished ability to work at his pre-accident capacity.[7] Since the claim was over the $100,000 threshold, it triggered the newly assented provision, section 558.1(2) of the Insurance Act (Alberta), which limits the number of expert reports that can be tendered in support of a damages claim in a motor vehicle accident to three per party.[8]

In Norris, the Plaintiff had already submitted three expert reports to support his claim (one report from a physiatrist, one from an occupational therapist, and an economic loss report from an economist).[9] The physiatrist recommended that Mr. Norris be further assessed by two additional specialists, a neuropsychologist and an ENT (ear, nose, and throat) physician.[10] Accordingly, Mr. Norris now sought judicial permission to submit two additional reports to address specific symptoms outside the expertise of the first three experts.[11] Section 558.1(6) stipulates that the court may allow additional expert reports on two conditions:

(a)    the subject matter of the additional evidence to be tendered must not already have been addressed by expert evidence; and,

(b)    without the additional reports, the party making the application would suffer prejudice that is disproportionate to the increased complexity and cost of the proceeding. [emphasis added][12]

While subsection (a) was uncontested, the court performed a type of probative value versus prejudicial effect analysis for the subsection (b) condition. The decision hinged on the necessity of the two additional reports in order for the plaintiff to prove his unique injuries. The court looked at the damages claimed in the Statement of Claim and considered the recommendation from one of the expert reports, holding that Mr. Norris would suffer prejudice as he would be unable to establish the extent of his injuries without the two additional specialist reports.[13] On the other hand, the judge found that the costs associated with the additional reports can be mitigated post-trial and that the increased complexity is unknown.[14] In granting the application to tender additional evidence, the court balanced the practical needs of the plaintiff in his particular circumstances and the legislature’s intent to enhance affordability of insurance (by restricting the lawyer of the plaintiff from calling “too many” expert witnesses, thereby preventing an unreasonably high value of disbursements incurred at the expense of the insurer).

Altogether, it took nearly six months for the court to release its decision, which came around a year after the first three expert reports were obtained.[15] The court and Mr. Norris did what they could with the hand they were dealt by the Alberta legislature. However, this presents an opportunity to critically analyse the risks and results of such laws.

RISKS PRESENTED BY EXPERT LIMITS

Unethical Decision Making Imposed by Law

Inherent in the practice of obtaining expert testimony is the idea that one is obtaining the perspective of a specialist, not a “jack of all trades.” Healthcare, and indeed all industries, are becoming more reliant on team-based, interdisciplinary approaches. The practice of limiting expert reports to three—or, worse yet, for claims under $100,000, one—at a maximum ignores this reality. A motor vehicle accident claim will often require medical examination to assess general and cost of care damages, economic analysis to assess loss of income or earning potential damages, and functional assessments to evaluate loss of housekeeping or further elucidate loss of earning potential damages. Furthermore, motor vehicle accidents may present multiple types of injuries, including both physical and psychological harm. Expecting that a specialist in one type of injury can comment on or elucidate damages in another scope of injury is unreasonable and may even be unethical.

Lawyers and claimants must now do a careful analysis of which three expert reports to present to further their claim. A lawyer may even be in the position of compromising on their own standard of care to their client by applying these expert limits to their claims and arguments. For example, a client may be able to claim that their representative “skimped” on expert evaluations that would’ve demonstrated their entitlement to a larger settlement or award from the courts. While such claims may be difficult to prove, even the possibility that one could be brought forward would erode faith in the justice system and the legal profession. In the alternative, a medical expert may be pushed towards providing opinions about an area outside their own specialty. For example, a physiatrist report may be used to push forward functional capacity claims that would have been more appropriately assessed by a physical or occupational therapist. Expert limits potentially ask that either the lawyer or experts compromise their own professional responsibilities, leaving the court more susceptible to admitting erroneous or misleading expert evidence due to its incompleteness or unreliability.

Increased Costs and Delays Caused by Limits

The limitation imposed by section 558.1(2) imposes a financial burden on the plaintiff of a motor vehicle accident in that each plaintiff who requires more than the prescribed number of expert reports must go see an Application Judge. Not only does this unduly consume the time of the lawyers on both sides, it also takes up the time of Applications Judges or Justices in Chambers. Further, since the actual prejudice can only be made out at trial,[16] it seems unlikely that a plaintiff’s application for additional expert evidence—as long as it has at least some degree of necessity—would be turned down, since it would risk leaving the plaintiff to face prejudice at trial. The very aim of such expert limits was to minimize costs and delays, but it seems to be achieving the opposite effect. The Norris decision added at least six additional months to the process, not counting the time spent to file and prepare the application for additional expert reports.

Expert limits increase the risks of unethical decision-making in the name of efficiency and might altogether be more costly and time-consuming for the legal system. There are other, better ways to reduce costs and delays in our justice system. Rather than imposing limits, governments should focus their efforts on filling judicial vacancies, which are prevalent across the country, and addressing thin court resources. In 2022, one in four Vancouver court cases were delayed to a later date due to lack of court capacity to hear them on the appointed date.[17] This represents a significant opportunity to address frustrating delays that erode confidence in the legal system. Legislatures that truly believe in increasing faith in the justice system should focus on expanding capacity rather than limiting lawyers, clients, and experts by cornering them into potentially unethical choices and ultimately worsening the costs and delays associated with the legal process.[18]

Engine Belts

Endnotes

[1] Kristen Everson, “Long delays and collapsed cases are eroding faith in the justice system, lawyers warn” CBC News (31 May 2024), online: <https://www.cbc.ca/news/politics/canada-justice-system-delays-1.7220882>

[2] Canada Evidence Act, R.S.C., 1985, c. C-5, s 7.

[3] The Manitoba Evidence Act, C.C.S.M. c. E150, s 25.

[4] The Insurance Act, RSA 2000, c I-3, s 558.1(2) [Insurance Act].

[5] Alberta, Legislative Assembly of Alberta, Alberta Hansard, 30-2 (2 November 2020), at 2915 online: <https://docs.assembly.ab.ca/LADDAR_files/docs/hansards/han/legislature_30/session_2/20201102_1930_01_han.pdf#page=5>

[6] Norris v Vomacka, 2024 ABKB 312 at para 2 [Norris].

[7] Ibid at para 2.

[8] Insurance Act, supra note 4.

[9] Norris, supra note 6 at para 4.

[10] Ibid at para 9.

[11] Ibid at para 9.

[12] Insurance Act, supra note 4, s 558.1(6).

[13] Norris, supra note 6 at para 19.

[14] Ibid at para 20.

[15] Ibid at para 13.

[16] Ibid at para 19.

[17] Connor Bildfel, “Bumped: How Judicial Vacancies Impact Access to Justice” (April 2024), online: <https://www.cbabc.org/BarTalk/Articles/2024/April/Columns/Bumped-How-Judicial-Vacancies-Impact-Access-to-Ju>