Early indications were that our courts were going to take a different approach to the admissibility requirements than earlier judgments had taken.
In Perry v. Vargas, 2012 BCSC 1537, Savage J. held that a report served on the eve of trial was not admissible. In rejecting the evidence, he stated:
[22] In my view the discretion provided for in R. 11-7(6)(c) must be exercised sparingly, with appropri- ate caution, and in a disciplined way given the express requirements contained in Rules 11-6 and 11-7. That is, the “interests of justice” are not a reason to simply excuse or ignore the requirements of the other Rules. There must be some compelling analysis why the interests of justice require in a particular case the extraordinary step of abrogating the other requirements of the Supreme Court Civil Rules. None was provided.In Wright v. Brauer, 2010 BCSC 1282 at para. 12, Savage J. noted that “Rule 11-6(4) was enacted to fill a lacuna in the Rules.” This was required because the former Rules permitted without notice expert evidence in reply if it was truly responsive. Rule 11-6(4) now clearly requires that notice.
In Redmond v. Krider, 2014 BCSC 2585, Madam Justice Maisonville stated that the Rules are to be read as a codification of the earlier common law respecting expert evidence, particularly with respect to service and notice requirements relating to the expert witness’s report, with the exceptions as set out in Rule 11-7. While these changes enhanced the notice requirements for expert evidence, the common law rules were also enhanced to strengthen the role of the trial judge to act as the gatekeeper, with a mandate to ensure that only properly admissible evidence was allowed.
In 2014, in R. v Sekhon [2014] 1SCR 272, the SCC was faced with deciding whether expert evidence from an experienced police officer to the effect that “…in his many years’ experience he had never encountered a blind courier…” was admissible to rebut the suggestion that the driver of a vehicle coming over the border with drugs concealed in a hidden compartment was unaware that they were there. Moldaver J., speaking for the majority in rejecting the evidence, reiterated the Mohan rules for admissibility, and then emphasized the ongoing obligation of the trial judge to act as a gatekeeper.
[46] Given the concerns about the impact expert evidence can have on a trial — including the possibility that experts may usurp the role of the trier of fact — trial judges must be vigilant in monitor- ing and enforcing the proper scope of expert evidence. While these concerns are perhaps more pronounced in jury trials, all trial judges — including those in judge- alone trials — have an ongoing duty to ensure that expert evidence remains within its proper scope. It is not enough to simply consider the Mohan criteria at the outset of the expert’s testimony and make an initial ruling as to the admissibility of the evidence. The trial judge must do his or her best to ensure that, throughout the expert’s testimony, the testimony remains within the proper boundaries of expert evidence. As noted by Doherty J.A. in R. v. Abbey, 2009 ONCA 624 (CanLII), 97 O.R. (3d) 330, at para. 62:The admissibility inquiry is not conducted in a vacuum. Before deciding admissibility, a trial judge must determine the nature and scope of the proposed expert evidence. In doing so, the trial judge sets not only the boundaries of the proposed expert evidence but also, if necessary, the language in which the expert’s opinion may be proffered so as to minimize any potential harm to the trial process. A cautious delineation of the scope of the proposed expert evidence and strict adherence to those boundaries, if the evidence is admitted, are essential. The case law demonstrates that overreaching by expert witnesses is probably the most common fault leading to reversals on appeal [Emphasis added; citations omitted.][47] The trial judge must both ensure that an expert stays within the proper bounds of his or her expertise and that the content of the evidence itself is properly the subject of expert evidence.
The following year, in White Burgess v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, the Supreme Court came back to the concept of the judge as a gatekeeper. The case involved a professional negligence case against a firm of auditors by the shareholders of a company. The shareholders retained different auditors who were critical of the original auditors’ work. A partner in a different office of the new auditors’ firm provided expert opinion evidence against the former firm. They objected, taking the position that she was biased because the case boiled down to a contest between the two firms, and if her firm was found to be wrong, it could expose her to personal liability as a partner. The court agreed and struck the evidence. The Court of Appeal disagreed. In upholding that ruling Cromwell, J., speaking for the Court, opened his judgment with these words:
