Expert not called as a witness at trial
If ICBC hires a doctor to examine a claimant,  the denial of the claim may be based on “junk science” and therefore can be challenged.
Novelty is a measure of reliability which must be balanced against its effect on the mind of the trier of fact. The concept of ‘novel’ is used to distinguish evidence that has gained certain acceptability from that which has not.
At para. 64, Cullen J. adopts the following statement from Chan v. Erin Mills Town Centre Corp., [2005] O.J. No. 5027 (S.C.J.):

it is difficult to find a civil case tried by judge alone, where novel scientific evidence was excluded because it failed to meet a threshold test of reliability. The reason may be that the metaphor of the judge as gatekeeper loses much of its symbolic force when it is the judge who is the trier of fact. This is not to say that a trial judge is excused from scrutinizing evidence as improperly admitted evidence can surely have an impact on a trial, but the likelihood of a judge being overwhelmed by the “mystic infallibility” of the evidence and misusing the evidence to distort the fact-finding process, is far more remote. The dangers that the principles are designed to avoid begin to fall away

The Civil Rules are general in application so they provide discretion for the Court to relax some rules when there is no prejudice or where it is in the interests of justice. 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 have not been complied with. It is unlikely however that ICBC will be allowed to rely on a report that based on junk science if the claimant has a competent personal injury lawyer.
Why would ICBC rely on doctors with questionable opinions? Learn more:


Leave a Reply

Your email address will not be published. Required fields are marked *

Post comment