Gill v. Posthuma, 2020 BCPC 190

Citation: Gill v. Posthuma 2020 BCPC 190 Date: 20201015 File No: 1964533 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: GURVIR GILL CLAIMANT AND: ALLAN POSTHUMA DEFENDANT RULING ON APPLICATION OF THE HONOURABLE JUDGE W. LEE Appearing in person: G. Gill Counsel for the Defendant: M. Schalke and S. Tecle Place of Hearing: Vancouver , B.C. Date of Hearing: October 6, 2020 Date of Judgment: October 15, 2020 INTRODUCTION

[ 1 ] This is an application by the Defendant Dr. Allan Posthuma to have the claim of Gurvir Gill dismissed. BACKGROUND [ 2 ] On June 20, 2019, Gurvir Gill filed a Notice of Claim against Dr. Allan Posthuma. According to the Notice of Claim, the Defendant Dr. Posthuma was appointed to write a s. 211 report for BC Supreme Court proceedings. Mr. Gill alleges that the report was flawed and as a result, Mr. Gill incurred significant expenses due to the need for a critique report to respond to Dr. Posthuma’s findings and increased legal fees. Mr.

Gill claimed for reimbursement of the costs of a Family Law Act s. 211 report ($12,075), the cost of a critique report ($3,150) and for reimbursement of legal fees ($19,755). [ 3 ] A Reply filed by Dr. Posthuma on July 8, 2019 states that Mr. Gill was a party in family law proceedings conducted through the BC Supreme Court, New Westminster Registry. The Reply further states that by court order made pursuant to s. 211 of the Family Law Act , Dr. Posthuma was retained to provide a Custody and Access Report to assist the court in the proceedings. Mr. Gill took issue with Dr.

Posthuma’s report and he retained another expert to prepare a critique report. [ 4 ] Mr. Gill complained to the College of Psychologists of British Columbia about Dr. Posthuma. The complaint was resolved by way of a resolution agreement with no admission of wrongdoing or breach of professional standards. [ 5 ] On August 14, 2019, Dr. Posthuma filed an Application to a Judge to have Mr. Gill’s Notice of Motion dismissed. This was supported by Dr. Posthuma’s affidavit filed August 14, 2019. [ 6 ] The application came before me on November 5, 2019. I adjourned the application to dismiss and gave leave for Mr.

Gill to amend his Notice of Claim to provide particulars including any claims for breach of contract and/or negligence. [ 7 ] Mr. Gill filed the Amended Notice of Claim on November 25, 2019. The Amended Notice of Claim now described the relief sought as follows: a. Cost of s. 211 report $12,075.00 b. Cost of s. 211 report critique $3,150.00 c. Special Damages $19,775.00 [ 8 ] The Amended Notice of Claim totalling $35,000 replaced the claim for reimbursement of legal fees of $19,755 with a claim for special damages in the same amount. [ 9 ] The Amended Notice of Claim described the allegations as follows: 1.

The claim against Dr. Posthuma is for breach of contract and negligence. 2. Mr. Gill and his former wife agreed that Dr. Posthuma would prepare a s. 211 report, which was authorized by way of a court order. 3. The preparation for the report required that the parents attend Dr. Posthuma’s office and for Dr. Posthuma to conduct home visits. 4. During Dr. Posthuma’s home visit with Mr. Gill, it was alleged that Dr. Posthuma fell asleep. 5. After the report was provided, Mr. Gill alleged that it was flawed due to ethical issues and procedural and factual errors. 6. Mr. Gill retained Dr. Elterman to review Dr.

Posthuma’s report and according to Mr. Gill, Dr. Elterman cited errors in Dr. Posthuma’s report. 7. Mr. Gill states that during this time, he learned that Dr. Posthuma was also preparing a s. 211 report for his former wife’s brother who was at the time living in the same house as his former wife. 8. Mr. Gill then filed a complaint with the College of Psychologists of BC. 9. Mr. Gill sought an adjournment of the Supreme Court trial due to Dr. Posthuma’s flawed report. Mr. Gill says that the Supreme Court Master ruled that there were flaws in Dr. Posthuma’s report and that Dr.

Posthuma did cross an ethical boundary. The court adjourned the trial and made a further order for a new s. 211 report prepared by a neutral psychologist. 10. Mr. Gill says that the College of Psychologists of BC agreed with his many complaints and that the matter was dismissed by way of a resolution agreement that Dr. Posthuma would be placed under regulatory supervision, not take on any new family law cases and retire at the end of 2018. [ 10 ] Mr. Gill concluded his Amended Notice of Claim as follows: Dr.

Posthuma has breached his contract with me and what I paid for, where he was to provide a neutral, factual, unbiased and accurate report. What Dr. Posthuma provided was a flawed and biased report with obvious ethical, factual and procedural errors. Because of the report, I have had to incur significant additional expense in not only the s. 211 report itself but then having the report critiqued by another Psychologist, dealing with an impending family trial and additional significant legal costs directly related to the flawed report.

During the entire process was the emotional cost due to a constant threat of potentially losing custody of my children all due to this flawed and negligent s. 211 report.

[ 11 ] Dr. Posthuma filed an Amended Reply to the Amended Notice of Claim on December 16, 2019. [ 12 ] Dr. Posthuma filed a new Application to a Judge on December 24, 2019 seeking to have the claim dismissed, relying upon the affidavit of Dr. Posthuma previously filed on August 8, 2019.

The application was set for hearing on February 20, 2020 but was adjourned to May 4, 2020 because the presiding judge had a conflict of interest. [ 13 ] Due to the COVID-19 pandemic and the effect it had upon the courts, the application to dismiss the claim set for May 4, 2020 was postponed and rescheduled as a settlement conference on July 2, 2020. [ 14 ] At the start of the COVID-19 pandemic, the Provincial Court set up a process to permit an application to request an urgent hearing. Dr.

Posthuma filed such a request, called an Application for Urgent Hearing, to ask that the application to dismiss the claim to be heard at the settlement conference. [ 15 ] The Application for Urgent Hearing came before me for assessment. I noted that the previous application to dismiss the claim was set for a two-hour hearing. Counsel for Dr. Posthuma felt he could tailor his arguments so that it could be dealt with in a shorter time at the settlement conference. I was skeptical of this, especially given that legal counsel did not represent Mr.

Gill, and it would be difficult to determine how long his submissions may take. [ 16 ] I concluded that there was no urgency to the request. However, given the prior attempts to have the application to dismiss heard, I ordered that the application would proceed by way of written submissions before me. I accordingly set out a

schedule for the making of submissions. [ 17 ] Following receipt of the submissions from the defendant, Mr. Gill responded with a request to provide oral submissions. I agreed to this request and my decision for doing so was set out in written Reasons for Judgment filed July 23, 2020. The hearing of the oral submissions from Mr. Gill was scheduled for October 6, 2020. [ 18 ] At the appearance of October 6, 2020, I advised Mr. Gill that the issue before me was whether I had the power to grant the orders sought. I told Mr.

Gill that for the purposes of an application to dismiss a claim prior to trial, I would be proceeding on the assumption that the facts as alleged by him were true. [ 19 ] Mr. Gill submitted that Dr. Posthuma breached an ethical boundary and that there had to be some accountability for his actions. He referred to a report from the College of Psychologists of British Columbia dated October 12, 2018 and a decision of Master Tokarek made in the Supreme Court family litigation dated May 10, 2018. Mr. Gill submitted that these documents support his claim against Dr. Posthuma. [ 20 ] Unfortunately, Mr.

Gill did not address the threshold question of whether I had the authority to grant him the orders sought. THE AUTHORITY TO DISMISS A CLAIM [ 21 ] The statutory basis for an application to dismiss a claim prior to a trial is found in Small Claims Act s. 2 and Small Claims Rule 7(14)(

i) and Rule 16(6)(o). [ 22 ] Rule 7(14)(

i) gives a judge at a settlement conference the power to dismiss a claim, counterclaim, reply or third party notice. The rule states that a settlement conference judge may: (

i) dismiss a claim, counterclaim, reply or third party notice if, after discussion with the parties and reviewing the filed documents, a judge determines that it (

i) is without reasonable grounds, (ii) discloses no triable issue, or (iii) is frivolous or an abuse of the court's process; [ 23 ] Caselaw also supports the authority of a Provincial Court judge to hear an application to dismiss a claim prior to or following a settlement conference. This allows for the “just, speedy, inexpensive and simple” resolution of claim as mandated by s. 2 of the Small Claims Act .

This procedure also allows the judge to put his or her decision on the record, which may not be possible at a settlement conference. [ 24 ] Cases where the court dealt with an application to dismiss prior to trial and outside of a settlement conference include the following: • Lura v. Jazz Forest Products

(2004) Ltd. , 2014 BCPC 14 • Sigurdur v. Fung and Louie , 2007 BCPC 239 • Cecil v. Holt Renfrew & Co. Ltd. , 2001 BCPC 54 • Gradley v. Doig Baily McLean Greenbank & Murdoch , 2000 BCPC 25 • Szczurowski v. Van Strien , 2009 BCPC 405 • Schiller v. Northern Health Authority , 2019 BCPC 60 [ 25 ] The decision Lura v. Jazz Forest Products

(2004) Ltd. , 2014 BCPC 14 at para. 12 , states when a

summary determination of a

claim should be used: [12]

Summary determination of a claim is a remedy which should only be used where it is clear from the facts which are not in issue,or from a proper application of the law, or from a combination of the two, what the result will be. While the following is not anexhaustive list, some of the more common situations when the rule has been applied to prevent a case from proceeding to trial include: (

a) Where a claim is statute barred or precluded by a limitation period or because of a failure to give notice (Wawanesa MutualInsurance Company et. Al v. Rona Inc. and Fluidmaster Inc. 2008 BCPC 0196; Cecil v. Holt Renfrew and Weston 2001 BCPC 54, 2001 BCPC 0054; Eddy v. Vandermeys [1993] B.C.J. No. 3031 (BCPC); Zabolotniuk v. City of Vancouver [1999] B.C.J. No.3067 (BCPC), Sigurdur v. Fung and Louie 2007 BCPC 239 ); (

b) Where the court lacks jurisdiction over the subject matter of the claim (First City Trust v. 282674 BC Ltd. (1983) (BC SC), 82 BCLR (2d) 123 (BCSC); Long v. Avis [1993] BCJ No. 1999 (BC Prov. Ct.); Universal Ventures Ltd. v. Gillespie [1993]BCJ No. 2691 (BC Prov. Ct.)); (

c) Claims against the principal of a company which should properly be brought against the company, not the individual (E.M. Plastics& Electrical Products Ltd. v. Abby Signs Ltd. and Lardeur 2009 BCPC 18 , 2009 BCPC 0018); (

d) Claims that turn on the

interpretation of a statute or regulation (Sidon v. Matsqui First Nation 2008 BCPC 103 , 2008 BCPC0103; Michell v. Emond 2007 BCPC 295 , 2007 BCPC 0295, upheld on appeal at 2008 BCSC 111 ); (

e) Claims that turn on the

interpretation of a contract (Johnson v. Lamb Properties Inc. 2008 BCPC 0193; Devon Transport Ltd. v. Shawand Oswald 2009 BCPC 3 , 2009 BCPC 0003; Biggs v. Biggs 2009 BCPC 64 , 2009 BCPC 0064); (

f) Claims brought against the wrong party; (

g) Claims brought by or against an unincorporated entity (Eco-Tourism 2010 Society v. Vancouver 2010 Bid Corp. 2005 BCPC 23); (

h) Claims for the cost of attending small claims court (Johnson v. Lamb Properties Inc., supra); (

i) Claims against a lawyer acting on behalf of an opposing party (Pugsley v. Harrison and Cohen 2007 BCPC 370 ,2007BCPC 0370); (

j) Claims under the Personal Property Security Act (First City Trust v. 282674 BC Ltd., supra); (

k) Unsupported claims for professional negligence (Sigurder v. Fung and Louie, supra, Bossy v. Kelowna Dental Center Inc. andDeGrouchy unreported decision of Myers P.C.J., May 28, 2004, Kelowna file C61482); (

l) Claims for solicitor-client costs (C.I.B.C. v. Washburn [1993] BCJ No. 2706 (BC Prov. Ct.), Gord Hill Log Homes Ltd. v. CancedarLog Homes (B.C.) Ltd. 2006 BCPC 480 , 2006 BCPC 0480, McGillion v. Barnett and Pique Publishing Ltd.2007 BCPC 10, 2007 BCPC 0010); (

m) Certain claims against a strata corporation (Valana v. Law 2005 BCPC 23 , 2005 BCPC 0023; Clappa v. ParkerManagement Ltd. [2003] BCJ No. 1980; 2003 BCPC 305 , Frechette v. Crosby Property Management Ltd. [2007] BCJ No.1162; 2007 BCPC 174 and Matthews v. The Owners, Strata Plan NW1874 2009 BCPC 66 , 2009 BCPC 0066; Leruyetv. Friesen et. Al 2012 BCPC 264 ); (

n) Where there has been clear abuse of process (Bank of Montreal v. Smith [1993] BCJ No. 2741 (BCPC)). [26] In the decision Sigurdur v. Fung and Louie, 2007 BCPC 239, the court stated: [4] One of the functions of a Settlement Conference in Small Claims proceedings is as a cursory test of the merits of the claim.

TheSettlement Conference Judge is essentially a gatekeeper whose task it is to keep out those claims which have no merit, those which areunsupported by any evidence (without weighing the existing evidence) and those whose outcome can be easily determined without asignificant expenditure of the court’s time and resources, such as on a point of law. The dismissal of a claim at a Settlement Conferenceis a remedy that should be used with caution and only in clear cases. See Eco-Tourism 2010 Society v. Vancouver 2010 Bid Corporationand the Queen 2005 BCPC 23 ; Cecil v.

Holt-Renfrew 2001 BCPC 54 , [2001] BCJ No. 798; 2001 BCPC 54. THE ARGUMENTS FOR DISMISSAL [27] Dr. Posthuma’s arguments for dismissal of the claim are set out in the Application to a Judge filed December 24, 2019. He refersto them as the first, second, third and fourth hurdle. I will discuss each in turn. First Hurdle [28] At para. 22 of the Application to a Judge, Dr.

Posthuma states: “The Amended Notice of Claim attempts to rely exclusively oninformation and records arising from the HPA (Health Professions Act) proceedings, albeit in an inaccurate and misrepresentingmanner”. [29] The Defendant submits that if this matter proceeds to trial, Mr. Gill may seek to rely upon information obtained from aproceeding under the Health Professions Act. Dr. Posthuma argues that s. 53 of the Health Professions Act prohibits the disclosure ofsuch information. Assuming that is true, this is not the trial of the claim and I am not weighing or assessing evidence that Mr.

Gill mightgive at the trial.

[30] Furthermore, Dr. Posthuma’s application to this court is akin to an application for

summary judgment under the Supreme CourtCivil Rules. Under Rule 9-6(5), the powers of the Supreme Court in a

summary judgment application are described as follows:

(5) On hearing an application under subrule (2) or (4), the court, (

a) if satisfied that there is no genuine issue for trial with respect to a claim or defence, must pronounce judgment or dismiss the claimaccordingly, (

b) if satisfied that the only genuine issue is the amount to which the claiming party is entitled, may order a trial of that issue orpronounce judgment with a reference or an accounting to determine the amount, (

c) if satisfied that the only genuine issue is a question of law, may determine the question and pronounce judgment accordingly, and (

d) may make any other order it considers will further the object of these Supreme Court Civil Rules. [31] I find that Supreme Court Civil Rule 9-6(5) is an appropriate description of how the Small Claims Court should also proceedwhen dealing with an application to dismiss a claim. Generally, an applicant must accept for the purposes of the dismissal applicationthat the facts in support of the claim are true. Aside from exceptions such as the making of outlandish claims (see for example thedecision in Williams v.

Simon Fraser University, 2018 BCSC 1787), a court hearing an application to dismiss is not to weigh theevidence. Given this, I do not accept Dr. Posthuma’s contention that Mr. Gill’s claim should be dismissed based on evidence that mightbe tendered at trial. Therefore, the first hurdle is not a basis to dismiss the claim. Second Hurdle [32] Dr. Posthuma submits that the Inquiry Committee under the Health Professions Act has no power to make findings of fact or lawand therefore its investigation report would not be relevant or admissible at trial. Once again, this requires me to review and weighevidence that Mr.

Gill might seek to rely upon at trial and this is not an appropriate consideration in an application to dismiss a claim. Ifind that the second hurdle is not a basis to dismiss the claim. Third Hurdle [33] Before discussing the third hurdle, it may be worthwhile to discuss the meaning of “costs” and “fees”. Costs Payable by a Party [34] In BC Supreme Court proceedings, the court may make an order that one party named in a legal proceeding pay “costs” toanother party named in the legal proceedings. In civil proceedings, this is governed by

Part 14 of the Supreme Court Civil Rules. Infamily proceedings, this is governed by

Part 16 of the Supreme Court Family Rules. The amount of costs is assessed with reference toAppendix B of each of the set of rules, with the scale of the costs determined by the level of difficulty of a case. The Supreme Court mayalso assess “special costs,” which is a higher level of costs. [35] An award of court costs assessed under Appendix B is essentially a contribution toward the actual expense, including legal fees,for each step of a court proceeding. Inherent Jurisdiction to Order Payment of Costs [36] The Supreme Court also has an inherent jurisdiction to award costs as described in MacLeod v.

Harrington (Guardian of), (BC CA), at paragraph 218. By “inherent jurisdiction”, I refer to a power held by the BC Supreme Court that is not derivedfrom legislation. The decision Oasis Hotel Ltd. v. Zurich Insurance Company, (BC CA) provides a more detaileddescription of the Supreme Court’s inherent jurisdiction powers starting at paragraph 6. The court in Oasis Hotel Ltd. relied upon itsinherent jurisdiction power to make an order for payment of costs by someone who was not a party to the litigation.

This differs from anorder under the Supreme Court Rules, where the court can only award costs against a named party to the court proceedings. [37] The Supreme Court may also award a successful party payment of disbursements to compensate for actual out of pocket expenseitems, such as court filing fees. Mr. Gill’s Claim for Payment of Reports Costs [38] In the Amended Notice of Claim, Mr. Gill’s claim for costs relates to the out-of-pocket expense paid for the s. 211 report($12,075) and the critique report ($3,150). [39] Dr.

Posthuma argues that this court does not have the power to order payment of the report expenses that arise from SupremeCourt proceedings. Dr. Posthuma refers to s. 3 of the Small Claims Act as setting out the Small Claims Court’s jurisdiction.

Section 3states: Claims the court may hear 3

(1) The Provincial Court has jurisdiction in a claim for (

a) debt or damages, (

b) recovery of personal property, (

c) specific performance of an agreement relating to personal property or services, or

(

d) relief from opposing claims to personal property if the amount claimed or the value of the personal property or services is equal to or less than an amount that is prescribed by regulation, excluding interest and costs.

(2) The Provincial Court does not have jurisdiction in a claim for libel, slander or malicious prosecution.

(3) This

section is subject to sections 16.4 and 56.3 of the Civil Resolution Tribunal Act . [ 40 ] The Small Claims Court is created by legislation called the Small Claims Act . The powers of the Small Claims Court comes from this and other legislation that specifically grants the court powers: see Pierce v. Canada Customs and Revenue Agency , 2004 BCPC 307 at para. 6 .

The Small Claims Court also has limited inherent jurisdiction, such as over its procedures: see Shantz, Gorman and Godfroid , 2012 BCPC 81 at para. 64 . [ 41 ] The Small Claims Act does not give to this court the power to award compensation for expenses arising from BC Supreme Court proceedings. I am not aware of any other legislation that allows this court to award compensation for expenses or fees arising from Supreme Court proceedings.

The Small Claims Court’s limited inherent jurisdiction also does not extend so far as to allow this court to make an order for payment of expenses or fees arising from Supreme Court proceedings by someone who was not a party to the Supreme Court proceedings. [ 42 ] Previous decisions of this court have found that a claim for payment of costs or legal fees related to BC Supreme Court proceedings must be sought in the BC Supreme Court: see McGillion v. Bennett & Pique Publishing , 2007 BCPC 10 at para. 14 and Machray v.

Simpson , 2011 BCPC 309 at paras. 27 and 28 . [ 43 ] I conclude that this court lacks jurisdiction to make an order that Dr. Posthuma reimburse Mr. Gill for the expense of the s. 211 report ($12,075.00) or the s. 211 critique report ($3,150.00). I accordingly dismiss those claims. Mr. Gill’s Claim for Special Damages [ 44 ] The remaining claim is for special damages of $19,775.00. Mr. Gill has not provided any particulars of what this claim relates to or how it is calculated. Special damages are a quantifiable claim.

Examples of special damages include medical bills, lost income or out of pocket expenses. [ 45 ] It is possible that at least

part if not all of the special damages claim is for reimbursement of legal fees paid in relation to the BC Supreme Court proceedings. The original Notice of Claim filed June 20, 2019 refers to a claim for legal fees of $19,775. The amended Notice of Claim replaces the claim for legal fees with a claim for special damages of $19,775. [ 46 ] If this claim is for repayment of legal fees arising from the BC Supreme Court proceedings, I refer to Small Claims Act s. 19(4), which states:

(4) The Provincial Court must not order that one party in a proceeding under this Act or the rules pay counsel or solicitor's fees to another party to the proceeding. [ 47 ] This

section deals with proceedings under the Small Claims Act . If the Small Claims Court lacks the authority to order payment of legal fees in its own proceedings, how does it obtain jurisdiction to order payment of fees arising from proceedings in another court? In my view, that jurisdiction does not exist. As such, I dismiss any claim by Mr. Gill for reimbursement of legal fees arising from the BC Supreme Court proceedings. [ 48 ] If the claim for special damages relates to something other than legal fees, then I turn to consider the fourth hurdle put forth by Dr. Posthuma. Fourth Hurdle [ 49 ] Dr.

Posthuma argues that he cannot be sued based upon witness immunity. He refers to the decision Lower v. Stasiuk , 2013 BCCA 389 at paras. 53 and 54 , which reads: [53] Madam Justice Huddart reviewed the history of the rule of witness immunity, noting its application to ordinary lay witnesses ( Watson v. McEwan , [1905] A.C. 480 , Hargreaves v. Bretherton , [1959] 1 Q.B. 45 ; Marrinan v. Vibart , [1963] 1 Q.B. 528 ), as well as experts ( Evans. v. London Hosp. Med. College , [1981] 1 W.L.R. 184 ). She also noted that in Saif Ali v.

Sydney Mitchell & Co. , [1980] A.C. 198 , the House of Lords balanced “the tension between the basic principles that there should be no wrong without a remedy, and the public’s interest in the administration of justice” and “restricted a barrister’s immunity from suit to the minimum necessary to ensure that the administration of justice was not impeded” (at 138). [54] After examining the policy reasons for the application of witness immunity to experts, Huddart J. concluded that “the protection of the integrity of the judicial process requires at least that an expert witness be immune from suit by any person with whom his only relationship derives from the judicial proceeding” (at 142).

Thus, an expert is protected from legal actions by an opposing party with respect to his testimony and preparation, and the expert’s duty to the court would outweigh any duty owed to a disgruntled litigant (see 139). [ 50 ] At paragraph 54, the Court of Appeal refers to Madam Justice Huddart’s conclusion that witness immunity extends to expert witnesses when the relationship between the expert witness and the claimant “derives from the judicial proceeding…” [ 51 ] The Court of Appeal went on to state at paragraph 65 that expert witnesses could still be liable for costs: [65] Firstly, in both Phillips and Jones , the courts clearly distinguished the circumstances of an expert from a lay witness.

Both parties

emphasized the significance of the clear duties owed to the court by expert witnesses, at common law and as enshrined in the applicablerules of court. Experts are considered to understand those duties and to know that if they breach them by their conduct in relation to thecourt they could be liable for costs. [52] As I explained earlier, the Supreme Court has an inherent jurisdiction to award costs against a person who is not a party to thecourt proceedings. Based on that ability, the Supreme Court is capable of awarding costs against an expert witness.

As I also stated, theSmall Claims Court does not have the inherent jurisdiction to make such an order. [53] In the decision V.H. v. Attorney General of British Columbia et al., 2005 BCSC 139, the plaintiffs sued some 23 defendantsarising out of a custody dispute that was the subject of separate court proceedings. One of the defendants was Dr. Eirikson who wasappointed by the court to prepare a custody and access report and who testified at the trial. Dr. Eirikson’s role appears to have beensimilar to the role played by Dr. Posthuma in Mr. Gill’s BC Supreme Court proceedings. With respect to the claim against Dr.

Eirikson,the court said: [117] The plaintiffs’ claims against Dr. Eirikson must be dismissed by reason of the absolute immunity from litigation arising fromwitness privilege as well as by reason of the fact that he was a court appointed expert who provided no therapeutic counselling to S.T. oreither of the plaintiffs. [118] The defence of absolute privilege operates to exempt any witness from liability for statements and investigations they make in thecourse of judicial or quasi-judicial proceedings.

It is the context in which the statements are made, rather than the nature of thestatements or the witness making them, which gives rise to the defence. There are also numerous reported cases in which the absoluteprivilege that attaches to any witness has been extended to the testimony of a professional expert witness engaged in the course of thelegal process. [54] Dr. Eirikson was sued again in the case J.P. v. Eirikson, 2015 BCSC 847. The court once again discussed witness immunity asfollows: VI. WITNESS IMMUNITY [15] Our Court of Appeal in McDaniel v. McDaniel, 2009 BCCA 53, quoting the decision of Mr.

Justice Groberman in the SupremeCourt, explained the doctrine of witness immunity as follows: [18] … Witnesses are absolutely immune from civil liability for anything that they say in court, even if what is said is false and even ifthey harboured malicious motives for giving evidence. The immunity is expansive. It applies to evidence given before quasi-judicialadministrative tribunals as well as courts.

It also applies to out-of-court statements made in the course of preparing to give testimony andeven to discussions with counsel for the purpose of determining whether or not the witness has relevant evidence to give. Wherelitigation is in contemplation, statements made by a potential witness on the subject matter of the litigation will fall within the immunity: Monje-Alvarez v. Monje-Alvarez (1992), (BC CA), 69 B.C.L.R. (2d) 99, 93 D.L.R. (4th) 659 (B.C.C.A.). [19] The immunity is essential to the administration of justice.

In order to foster an atmosphere in which witnesses and counsel areunfettered in their preparations for judicial proceedings, neither should face the possibility of a civil suit over their discussions. [16] The rationale underlying witness immunity has been expressed in various ways, but the essence is that the protection of witnessesfrom the risk of suit is more important than righting a wrong in a particular case. [17] The protection extends to an expert witness.

The policy reasons behind protecting an expert witness from suit are that the fear ofbeing sued might dissuade an expert from testifying, thereby depriving the court from the assistance it needs and, more importantly, thatthe court’s process be protected: Carnahan v. Coates (1990), (BC SC), 47 B.C.L.R. (2d) 127 (S.C.) [18] The context of the relationship between the expert and the person seeking to sue is key. If the only relationship between theexpert and the person seeking to sue him derives from the judicial proceeding, the expert is immune from suit: Lower v. Stasiuk, 2013BCCA 389, para. 54.

In the present case, the relationship between the plaintiffs and the defendant was derived from two differentjudicial proceedings: the child protection proceedings and the family law proceedings, but that fact makes no difference to how therelationship is analyzed in the context of whether witness immunity applies over the course of the relationship. [55] In Owimar v. Warnett, 2018 BCSC 2310, the plaintiff sued two defendants. One defendant was a lawyer who acted for ICBC indefence of a court action started by the Plaintiff. The other was Dr. McGraw, a witness in the ICBC action.

The court dismissed theaction against the lawyer because there was no basis for the claim. The court dismissed the action against Dr. McGraw because he wasprotected by witness immunity, stating: [34] With regard to Dr. McGraw I am satisfied that the doctrine of witness immunity applies. Under that doctrine witnesses areimmune from civil liability. In addition as for expert witnesses the doctrine applies to anything they say in court as well as pre-trialactivities including assessments and reports: P.(J.) v.

Eirikson, 2015 BCSC 847 at paras. 21 and 25. [35] Our Court of Appeal recently confirmed that a professional witness who gives evidence in court is protected from civil action in311165 BC Ltd v. Canada (A.G.), 2017 BCCA 196: [50] It must be kept in mind that the immunities from suit that prevent claims based on evidence given in court and on bringing litigationare broad in order to protect the justice system. Witnesses should not be dissuaded from giving evidence or fettered in what they tell acourt by the fear that an aggrieved person will sue them.

Prosecutorial decisions must be allowed to be made in an atmosphere that isfree from the chilling effects of potential civil liability. Access to the courts must not be impeded by leaving litigants in fear of beingopen to lawsuits brought in retaliation. [36] As a result of the witness immunity defence I am satisfied that the plaintiff’s allegations against Dr. McGraw will fail.

Accordingly there is no genuine issue to be tried and the claim must be dismissed under Rule 9-6(5)(a). [ 56 ] On the facts before me, the Supreme Court made an order for the preparation of a report pursuant to s. 211 of the Family Law Act , with the costs of the report to be shared by the parties. The parties agreed that the report would be written by Dr. Posthuma. Dr. Posthuma’s role was that of a professional witness who was authorized to write the report pursuant to the court order. In these circumstances, I find that witness immunity applies to protect Dr.

Posthuma from any civil action arising from the Supreme Court proceedings involving Mr. Gill. This is the case whether Mr. Gill’s claim for special damages relates to legal fees or some other claim. Because of witness immunity, the claim against Dr. Posthuma must be dismissed. APPLICATION FOR PAYMENT OF A PENALTY [ 57 ] Dr. Posthuma ask for an order pursuant to Small Claims Rule 20(5) that Mr. Gill pay a penalty of up to 10% of his claim because his claim had no prospect of success. Rule 20(5) states: A judge may order a penalty

(5) A judge may order a party to pay the other party up to 10% of the amount claimed or the value of the claim or counterclaim if the party made a claim, counterclaim or reply and proceeded through trial with no reasonable basis for success. [ 58 ] Rule 20(5) only applies if this matter proceeded through trial, which was not the case here. As such, there is no authority for me to award a penalty and I dismiss that request. ORDER [ 59 ] I order as follows: a. The Amended Notice of Claim filed November 25, 2019 by Gurvir Gill is dismissed. b. Pursuant to Rule 20(2), Gurvir Gill will pay to Dr.

Allan Posthuma the sum of $50 representing the fee for filing the Reply. c. If the defendant claims for any other expenses pursuant to Rule 20(2), then I refer this matter to the Registrar for determination pursuant to Rule 20(3). _____________________________ The Honourable Judge W. Lee Provincial Court of British Columbia