A family doctor or specialist involved an in ICBC or other personal injury claim is often much less prepared for court than many personal injury clients expect. There are many factors to consider when finding a physician including experience, location, local resources, and the like. However, an understanding of their duty to the Court will be essential if their opinions are expected to be put into evidence at trial.
Among other things, there is now a specific requirement under the British Columbia Supreme Court Civil Rule 11-2, for an expert to certify that: the expert is aware he/she has a duty to assist the court and is not to be an advocate for any party; and the expert will, if called on to give oral or written testimony, give that testimony in conformity with that duty.
ICBC and other insurance companies defending parties in personal injury litigation in BC are objecting to the admissibility of expert reports written by treating physicians on the grounds that the reports do not contain the Duty of Expert Certification. Family Physicians accepting new patients for ICBC injury claims should take heed and make it a practice to include expert certification in all reports, even if you do not expect to testify in court.
The Family doctors and other BC physicians have been advised of this change by the College of Physicians and Surgeons of BC. The College does expect doctors to be familiar with this change and when asked to provide an expert opinion the treating physicians should discuss with their patients the physician’s duty to assist the court and not be an advocate for any party.
The CPSBC have always expected physicians providing expert reports to be fair, objective, and provide opinions that are supported by available information, so the duty imposed under Rule 11-2 is in harmony with the existing duty, and some would say unnecessary.
Some physicians are still however not familiar with this rule and reports are written for a dual purpose, leaving out the necessary court certification. Rule 11-7(6) gives the court a discretion to allow an expert to provide evidence, on terms and conditions, even though one or more of the requirements of the Rule have not been complied with. As the rule states:
(6) At trial, the court may allow an expert to provide evidence, on terms and conditions, if any, even though one or more of the requirements of this Part have not been complied with, if
(a) facts have come to the knowledge of one or more of the parties and those facts could not, with due diligence, have been learned in time to be included in a report or supplementary report and served within the time required by this Part,
(b) the noncompliance is unlikely to cause prejudice
(i) by reason of an inability to prepare for cross examination,or
(ii) by depriving the party against whom the evidence is tendered of a reasonable opportunity to tender evidence in response, or
(c) the interests of justice require it
There are currently few reported cases that have considered this rule in the context of personal injury litigation. I was however able to find a BC case ,2011 BCSC 162, addressing the lack of certification on an expert report. The Judge allowed the report as there was no prejudice and justice so required. The order was made however on certain conditions. Here is what Judge Adair had to say about the Rule 11-7(6) exceptions:
 I think it is fair to say there is some prejudice resulting from the way in which Mr. C’s opinions were presented to the court during the voir dire. Rather than the orderly, intelligible presentation contemplated by Rules 11-6 and 11-7, Mr. C’s opinions were presented in a confusing jumble during his direct examination (and again, this is not a personal criticism of Mr. C). It was often unclear when (and whether) he was being asked to state an opinion, and when he was asked, the basis for the opinion was often unclear. This makes fine filtering of Mr. C’s testimony – separating the admissible from the inadmissible – more challenging. Among other things, Mr. B objected to leading questions put to Mr. C during his direct examination, and Mr. Barker argued that was one of the things that left Mr. C’s evidence “irretrievably contaminated.” Mr. B also objected to Mr. C’s evidence on the basis of case-splitting. Nevertheless, Mr. B did not argue that he or his client was prejudiced because of an inability to prepare for cross-examination (in fact, Mr. B did cross-examine Mr. C), or because Mr. S was deprived of any reasonable opportunity to tender evidence in response to Mr. C.
 However, I do not consider it fair in the circumstances to deprive C of all ability to call evidence in defence of Mr. Ss’ counterclaim. For that reason, I have concluded that the interests of justice require that Mr. C be allowed to provide opinion evidence, but on terms.
Watch our video about how judges decide personal injury cases to help understand where the evidence of the family doctor may be useful: