Bernard v. Thibideau, 2011 NSSC 395

SUPREME COURT OF NOVA SCOTIA Citation: Bernard v. Thibideau, 2011 NSSC 395 Date: 20111025 Docket: Hfx. No. 183869 Registry: Halifax Between: Ruth Ann Bernard Plaintiff v. Charles L. Thibideau Defendant LIBRARY HEADING Judge : The Honourable Justice Peter P. Rosinski Heard: October 17 and 19, 2011 in Halifax, Nova Scotia Subject: Civil Procedure Rule (2009) 92.04(g) - Ruling regarding whether CPR 1972 or CPR 2009 apply to expert opinion evidence (reports, attendance at trial and testimony).

Summary: A motor vehicle struck a pedestrian on August 1, 2000. By 2005 an Originating Notice (action) and Defence had been filed. A Notice of Trial under the old Rules was filed November 2008. Shortly after a Date Assignment Conference in March 2009, the matter was set for trial in November - December 2011. The Plaintiff had characterized 35 of its 52 witnesses as “experts”. Most had filed their initial reports by March 2009. Issue: Pursuant to Civil Procedure Rule (2009) 92.04(g), outstanding steps in an action, such as “delivery of an expert’s report” are to be dealt with under the old Rules.

Where experts reports are delivered before the advent of the new Rules (January 1, 2009) and thereafter, should the 1972 Rules or the 2009 Rules apply to the proposed testimony and attendance requirements for those experts at trial? Result: Civil Procedure Rule (1972) apply to govern expert opinion, and attendance requirements at the trial in 2011. The vast majority of initial expert reports had been delivered as between the parties by March 2009, and a Notice of Trial was filed in November 2008. The intention of the drafters of CPR (2009) 92.04(

g) was that presumptively CPR (1972) should apply to allow completion of “delivery of an expert’s report”, and thereby they meant CPR (1972) 31.08 rather than CPR (2009) 55.13 should apply in the case at Bar. Although the Court had discretion to override this legal conclusion, it was not in the interests of justice to do so in this case.

THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . SUPREME COURT OF NOVA SCOTIA Citation: Bernard v. Thibideau, 2011 NSSC 395 Date: 20111025 Docket: Hfx. No. 183869 Registry: Halifax Between: Ruth Ann Bernard Plaintiff v. Charles L. Thibideau Defendant Judge: The Honourable Justice Peter P. Rosinski. Heard: October 17 and 19, 2011, in Halifax, Nova Scotia Counsel: David W.

Richey, for the Plaintiff John Kulik, Q.C. with Ian Dunbar, for the Defendant By the Court : [ 1 ] This case raises the issue of whether the 2009 or the 1972 Civil Procedure Rules apply to expert testimony at trial. [ 2 ] It is claimed that at about 7:00 p.m. on August 1, 2000, Ruth Ann Bernard was struck by Mr. Thibideau’s pickup truck while

she was in a designated pedestrian walkway. He was turning left from Robie Street, at the “Willow Tree” intersection, onto Quinpool Road, when his truck collided with Ms. Bernard who was in the process of crossing, from a concrete median area in the middle of Quinpool Road, over to the far north side of Quinpool Road. [ 3 ] In 2002, Ms. Bernard began an action against Mr.

Thibideau alleging negligence from which she sustained injuries justifying claims for general damages (pain and suffering), lost past earnings, lost future earnings and diminution of earning capacity, cost of future care pre-judgment interest and costs “and such other relief as this Honourable Court may deem just”. [ 4 ] On July 14, 2005, Mr. Thibideau filed his Defence, in which he claims it was a simple accident, or that he was not negligent, and even if he was negligent, Ms. Bernard was contributorily negligent.

Chronology [ 5 ] This action is set to be heard by a jury between October 31, 2011 and December 8, 2011. During pre-trial communications, it became apparent that the Plaintiff would be relying on about 35 expert opinion witnesses regarding her damages claims. The Defendant will be relying on 3 expert opinion witnesses.

This prompted the parties to argue before me, at a pre-trial hearing on October 17 and 19, 2011, their positions about whether the Civil Procedure Rules (1972), the “old Rules”, or the Civil Procedure Rules (2009), the “new Rules”, govern the matter of expert opinion. [ 6 ] Either CPR (1972) 31.08 applies to the testimony and reports of the experts, or CPR (2009) 55 applies. The bare chronology of events / filings is important in determining which Rules will apply to this issue at trial. [ 7 ] Mr. Richey, counsel for Ms.

Bernard, filed an affidavit sworn October 17, 2011, containing numerous items of significant filings / documents. Notable among those items were: (

a) Defendant’s Notice of Trial with a Jury and Certificate of Readiness filed November 20, 2008 (see also the Date Assignment Conference memorandums filed by the parties March 5, 2009 (Defendant) and March 12, 2009 (Plaintiff) with draft list of expert witnesses and attached; (

b) A Date Assignment Conference, scheduled for and heard on March 13, 2009, before Justice Suzanne Hood, resulted in: (

i) Trial dates (22 days) - to be set by scheduling - not long thereafter set as Oct. 31, 2011 - Dec. 8, 2011; (ii) The filing on March 26, 2009 of 2 volumes entitled: “Notice of Plaintiff’s Expert Witnesses pursuant to CPR 31.08 (1972)”. [ 8 ] Pursuant to CPR (2009) 4.18, the list of Defendant’s witnesses to be called at trial was provided to Mr. Richey in open court on October 19, 2011. In his pre-trial brief filed October 14, 2011, Mr. Thibideau states he will rely on the evidence of two medical experts: Dr. Michael Gross (Orthopaedic surgeon) and Dr.

David King (neurologist) and one actuary Stuart Smith of C.R. Tyner & Associates. I believe Mr. Thibideau, the Defendant, is included on that list, as is an independent lay witness Marie Harewicz. [ 9 ] Pursuant to CPR (2009) 4.18, the Plaintiff produced its list of intended witnesses in two emails: As to expert witness, these are listed in a September 8, 2011 email [Exh. “O” Richey affidavit; two experts (Dr. Ian Grant, Neurologist and Dr. C. Glen Richardson, Orthopaedic Surgeon) were added to the March 26, 2009, filed Notice of Plaintiff’s Experts (Dr. T.

Loane’s report was not included on March 26, 2009, but his name was included); also the actuary Jessie Gmeiner is no longer to be considered as an intended witness]. [ 10 ] As to lay witnesses, the Plaintiff lists these (having omitted, but intended, to include the Plaintiff herself) at Exh. “V” Richey affidavit, which includes an October 14, 2011 email to Mr. Kulik. There is also a reference to Dr. David Haase who is a treating

physician of the Plaintiff, but who will only give fact evidence - not opinion evidence. Position of the Parties Defendant [ 11 ] He says that presumptively CPR (2009) 94.02 requires that the new Rules apply to “all steps taken after...” Jan. 1, 2009 regarding actions and that there is no inherent unfairness in this result, so the new Rules ought to be applied. [ 12 ] Although CPR (2009) 92.04(

g) refers to “delivery of expert reports” as an exception to which the old Rules are to be applied, the Defendant argues that a proper reading of 92.04(

g) suggests that it was not intended to include expert testimony at trial which is in issue here. [ 13 ] Moreover, the Defendant relies on the passage of time since the new Rules became effective (Jan. 1, 2009) and argues that other steps in the litigation have been governed by the new Rules so it is appropriate that the new Rules govern expert testimony at trial as well. [ 14 ] The Plaintiff argues its position will be prejudiced if the new Rules are found to govern expert testimony at trial.

The Defendant points out that, although under the old Rules the Plaintiff’s counsel is in control of the calling of its witnesses [ie.

Who is to be called and possibly examined in direct, for example, to explain the technical terms in an expert report without going beyond the “opinion” given in the written report], under the new Rules, the Court is in control since leave may be obtained to call a witness to testify, even though the presumption is that only their reports will become evidence (unless the opposing party wishes to cross-examine them or they are to be called as a fact witness only) - CPR (2009) 55.13. [ 15 ] The Defendant relies on CPR (2009) 1.01 and the notion that although costs consequences are available under the old Rule 31.08(5), it is more efficient, though no less fair to the Plaintiff, to require her to justify each expert she wishes to call pursuant to the parameters of CPR (2009) 55.13. [ 16 ] That is, if not required for cross examination or appearing as a fact witness only, the Plaintiff can nevertheless, under CPR (2009) 55.13, call as a witness an expert if “the presiding judge is satisfied that justice requires that the expert testify”.

Plaintiff [ 17 ] The Plaintiff wishes to have the unbridled control of its own case as in the case (subject to cost consequences 31.08(5)) in CPR (1972) 31.08. [ 18 ] CPR (1972) 31.08(4) requires each expert witness: ... to attend at the trial unless the person receiving the report gives notice that he does not require the attendance of the expert at the trial. [ 19 ] Moreover, the Plaintiff argues she could insist on an expert’s attendance even if the Defendant does not require the witness for cross-examination. [ 20 ] The Plaintiff argues that to interfere with this right to call its witnesses would be unfair to a litigant.

In the case at Bar, the

Plaintiff will want to call some of its experts to give direct evidence, in addition to their written reports for the Plaintiff, to allow for explanations of the technical terms and to set the context for the jurors, i.e. to assist the jury’s understanding of the written reports. [ 21 ] The Plaintiff also argues that since the reports were drafted with the old Rules in mind, those old Rules should also govern any testimony regarding those reports.

The new Rules create greater restrictions on the contents of reports [see CPR (2009) 55.04] - the reports need not be re-written to comply with the new Rules, and this is why only the old Rules should apply to the expert opinion evidence in this case and why the “delivery of expert reports” in CPR (2009) 92.04(

g) must be interpreted to include testimony at trial as well. [ 22 ] This is consistent with the structure of the Rule as well, says the Plaintiff. [ 23 ] She argues that CPR (1972) 31.08 deals with “expert witnesses: evidence of and report”, but is focussed on delivery of their “reports”, and it is therefore to be expected that CPR (2009) 92.04(

g) in its reference to “delivery of expert reports” should be intended to apply to all of CPR 31.08 as being included in “outstanding” steps. [ 24 ] The Plaintiff relies on the following decisions of this Court: A. Marshall v. Annapolis County District School Board , 2009 NSSC 203 per Moir, J. and 2009 NSSC 376 per Pickup, J. B. Ocean v. Economical Mutual Insurance Co. , 2010 NSSC 315 per Smith, ACJ . C. MacIntyre v. RBC Life Insurance Co. 2010 NSSC 152 per Bourgeois, J.

Does CPR (1972) 31.08 or CPR (2009) 55 apply to the testimony of expert witnesses in this case? [ 25 ] Ultimately parties make arguments on legal issues that they view as advantageous to their tactical or strategical positions.

During the latter stages of the hearing herein, both counsel made arguments that centered on how the applicability of the old Rules or new Rules would affect the parties’ right to a “fair” trial. [ 26 ] The Plaintiff argued that she was entitled to conduct her case as she saw fit, and that the application of the new Rules (CPR 55) would interfere with and undermine that right (i.e. to fully present her expert evidence). [ 27 ] The Defendant argued that the application of the old Rules would permit the presentation of many expert witnesses that are unnecessary (the Defendant having indicated it would only wish to cross-examine 6 of the 35 listed expert witnesses) and put the Defendant to significantly more expense for which he would only receive partial indemnification if successful at the end of the trial - but see CPR 31.08(5). [ 28 ] Both parties recognize that even if the old Rules apply (which does not prohibit the calling of expert witness) a judge may limit the number of expert witnesses to be called at trial - CPR (1972) 31.06; whereas if the new Rules apply (which presumptively prohibit the calling of expert witnesses) a judge may nevertheless permit an expert to be called at trial - CPR (2009) 55.13(2)(c). [ 29 ] Counsel in this case have suggested that judges of this Court have taken differing views of this issue in cases since January 1, 2009.

There are no reported cases that support this, but even if there have been some apparently irreconcilable outcomes, these outcomes

may be attributable to the exercise of the judges discretions as I noted above [CPR (1972) 31.06 and CPR (2009) 55.13(2)(c)] as much as any clear indication of how those judges determined which Rules should apply. In my view, factual circumstances will often carry the day in such situations. [ 30 ] The answer to which Rules, 1972 or 2009, apply to this trial and more particularly, expert reports / testimony, will depend on a statutory

interpretation of the new Rules: specifically 92.02(1)(

b) and 92.04(g). [ 31 ] Those rules read: Rule 92 - Transition Application to outstanding proceedings 92.02

(1) Unless this Rule provides or a judge orders otherwise these Rules apply to all steps taken after the following dates in the following kinds of proceedings: ... (

b) January 1, 2009 in an action started before that day. Outstanding interlocutory steps 92.04 Each of the following steps that is outstanding in a family proceeding on June 30, 2010, or in an action on January 1, 2009, must be completed under the Nova Scotia Civil Procedure Rules (1972), unless the parties agree or a judge orders otherwise: ... (

g) the assignment of trial dates, delivery of an expert’s report , and discovery in a divorce proceeding in which a party files a request for trial date and certificate of readiness before the date, and in an action in which a party files a notice of trial before the date ; [ 32 ] The CPR (2009) are considered to be equivalent to legislation and consequently the rules of statutory

interpretation came into play in interpreting whether “delivery of an expert’s report” is intended to extend to other aspects regarding expert opinion evidence, such as expert witness testimony. [ 33 ] The most recent comment from our Court of Appeal on statutory

interpretation arises in a criminal case involving a youth under the YCJA - R v. RVF 2011 NSCA 71 per Beveridge, JA at para. 29: A word or phrase should not be examined in isolation, but in context and in accord with the recognized principles of statutory

interpretation. The correct approach to statutory

interpretation is straightforward and oft repeated. Recently in Cape Breton (Regional Municipality) v. Nova Scotia (Attorney General), 2009 NSCA 44 , MacDonald, C.J.N.S. wrote: [36] The Supreme Court of Canada has endorsed the "modern approach" to statutory

interpretation as expounded by Elmer Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) at p. 87:

... the words of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme ofthe Act, the object of the Act, and the intention of Parliament. See Re Rizzo and Rizzo Shoes Ltd., (SCC), [1998] 1 S.C.R. 27 at 41; Canada (House of Commons) v. Vaid, 2005 SCC30, [2005] 1 S.C.R. 667; and Imperial Oil Ltd. v. Canada; Inco Ltd. v. Canada, 2006 SCC 46, [2006] 2 S.C.R. 447. See also: Coates v. Capital Health District Authority, 2011 NSCA 4; Nova Scotia (Health) v. Morrison Estate, 2011 NSCA 68, at para.14 [34] What then does “delivery of an expert’s report” in CPR (2009) 92.04(

g) mean? [35] CPR (2009) 92.04 and 55 should be read together harmoniously to give effect to their respective meanings vis-à-vis the issue athand. [36] CPR 55.13 is entitled “Testimony by expert”, but it is only a part of CPR 55, which is a Rule specifically directed to “expertopinion” generally. [37] Notably the filing deadlines for expert reports are contained in CPR 55.03 and that Rule does not use the word “delivery” - itonly refers to “file”, although filing documents with the Court, of necessity, implies, at the latest, concurrent delivery to the other parties. [38] CPR (2009) 92.04(

g) is entitled “outstanding interlocutory steps”, but is part of CPR 92 which is specifically directed to“Transition” generally from the old Rules to the new Rules. [39] Without question, CPR (2009) 55 dealing with “expert opinion” is a radical change from CPR (1972) 31.08. This is soregarding significant aspects of “expert opinion”: such as whether experts can be orally discovered as of right (no longer under newRules); and that as a general rule, experts whose qualifications and opinions admissibility are not contested may not testify unless: (

a) The expert is also a fact witness and direct examination will be confined to the facts; (

b) The party is notified before the finish date [ie. as set at a Date Assignment Conference and no less than 60 days before trial. CPR(2009) 4.16(6)] that the other party requires the expert to attend for cross-examination; (

c) The Judge is satisfied that justice requires that the expert testify. [40] Under the 1972 Rules, 31.08(4), the expert was required to attend trial, unless the opposing party gave notice that the expertneed not attend trial. [41] Interestingly, 31.08(4) of the 1972 Rules and CPR 55.13(1) of the 2009 Rules both use the word “delivered” regarding receiptof the expert report by the opposing party. [42] It would make sense that the use of the notion of delivery of an expert’s report in CPR (2009) 92.04(

g) is intended to have asimilar significance. “Delivery” is important because in each case, at that time, the expert opinion is precisely and formally identified tothe opposing party and that party can then consider its position in light of the contents of that report.

[ 43 ] Given the radical differences between the old and new Rules regarding “expert opinion”, I believe that, in the absence of contrary clear language, I must conclude that the reference in CPR (2009) 92.04(

g) to “delivery of an expert’s report” is intended to tie into the old Rules such as CPR (1972) 31.08(4).

That is, the use of the phrase “delivery of an expert’s report” is a signal that the old Rules are to continue to be applied in transition regarding expert opinions in such circumstances. [ 44 ] The new Rules contain a more compartmentalized and comprehensive Rule (55) to deal with “expert opinion” which is not likely intended by the drafters of the new Rules to be fused with the old Rules such that only the actual “delivery” of an expert report would be regulated by the old Rules, whereas expert testimony at trial would be regulated by the new Rules.

In my view, the drafters intended that, in the case of “expert opinion” evidence, if the foundational outstanding step is regulated by the old Rules, so should the consequential steps in that regard. [ 45 ] I note as well, that in several other cases, justices of this Court have taken a similar approach: eg. at para. 16 in Ocean 2010 NSSC 436 , Smith, ACJ found that for an action filed in December 2002, with a Notice of Trial and Certificate of Readiness filed in April 2007, the litigation was (in July 2010) “sufficiently advanced that it is appropriate that the form of all [expert] reports should be measured against former CPR 31.08(1) rather than have some of the reports being measured against the former Rule (31.08) and others measured against the present (55)”. [ 46 ] At paras. 12 - 14 in Marshall 2009 NSSC 203 , which concerned the filing of expert reports, Justice Moir noted that: The differences [between the old and new Rules] are great enough that the new Rules could not reasonably be applied to many actions that were mature before the new Rules came into effect.

The application of deadlines for delivery of expert's reports to actions matured before the new Rules came into effect presents sufficient difficulty that [CPR

(2009) Rule 92.04(g)] applies the old deadlines to actions in which a Notice of Trial was filed under the old Rules "unless the parties agree or a judge orders otherwise".

Conclusion [ 47 ] In my opinion, transitional Rules, such as CPR (2009) 92.04(g), are intended primarily to provide the least disruption possible in the transition from an existing regime of rules to a new regime. [ 48 ] It is also important to give effect to this intention in a way that allows the CPR (2009) to be harmoniously read together. [ 49 ] Generally, these two aspects should be able to be reconciled in any particular case of transition where the case was procedurally at a mature stage, and specifically in the case of expert reports, when by the time of transition, a Notice of Trial had already been filed.

That filing suggests that the matter is ready for trial, which trial should be presumptively governed by the existing regime of rules. [ 50 ] In the case at Bar, I find that “delivery of an expert’s report” per CPR (2009) 92.04(

g) had taken place on November 20, 2008 when the Notice of Trial was filed. [ 51 ] Therefore, as a matter of law, the old Rule 31.08 applies to expert opinion evidence at this trial rather than CPR (2009) 55.

[ 52 ] In spite of that conclusion at law, I have the discretion under CPR (2009) 92.02(1) and 92.04 to apply the new Rule (CPR (2009) 55) if the circumstances of this case justified doing so.

I do not conclude that the application of the old Rules would cause an injustice, and therefore I decline to invoke that discretion to cause the new Rules to be applicable. [ 53 ] I also have the discretion under CPR (1972) 31.06 to limit the number of expert witnesses who are called to testify. [ 54 ] I decline to do so in advance of the trial , as I do not conclude it is necessary to do so, bearing in mind, among other things: 1. Two of the Defendant’s 3 expert witnesses initial reports were delivered to the Plaintiff / Court in November 2008; 2.

Of the Plaintiff’s presently constituted complete list of expert witnesses (35) at least 32 of those were included in the Plaintiff’s “Notice of Plaintiff’s Expert Witnesses pursuant to Rule 31.08 (1972)” as filed on March 26, 2009 - and only Dr. Loane’s report was missing as unavailable; and since then added to the list are the reports of Dr. Ian Grant and Dr. C. Glen Richardson; 3.

The Plaintiff, who has the burden to establish its case, should be permitted to present its evidence in the manner she sees fit, unless a sustainable objection is raised by the Plaintiff - and this process will be available to the Defendant at trial; 4. The Defendant’s argument that there will be prejudice to its position if I allow the old Rules to apply to expert testimony at trial - the prejudice put forward was primarily an argument that unnecessary witnesses will be testifying, thus creating greater expense for all concerned, and most importantly, the Defendant.

This complained of prejudice may or may not manifest itself at the trial. The Court will remain vigilant to ensure that a proper balance of fairness and efficiency is struck vis-à-vis both the Plaintiff and Defendant. [ 55 ] I note that I consider that I have authority to revisit this issue of potential prejudice during the trial pursuant to: CPR (1972) 31.06 (limiting the number of experts who are permitted to testify); and CPR (1972) 31.08(5) (Costs as against a party calling an expert whose evidence “does not materially add to the information” contained in his/her report.

Ruling [ 56 ] Civil Procedure Rule (1972) 31.08 applies to the evidence of all witnesses who could testify as “expert witnesses” in this trial. [ 57 ] I further rule that the Plaintiff / Defendant may request leave from the Court in relation to calling any of their own expert witnesses (in direct) to allow for an explanation of the technical terms / concepts referred to in their reports in order to assist the jury in understanding their evidence. [ 58 ] I remind both parties of their obligation pursuant to CPR (2009) 4.18(5) to “immediately notify” the other party and the Court of their decision not to call as a witness, any person(

s) on their witness list; and the parties of their obligation under CPR (1972) 31.08(4) to provide notice (as soon as possible) if an expert witness is not required for cross-examination. [ 59 ] Thus far, at the pre-trial hearing, the Defendant has confirmed that he only requires 6 of the Plaintiff’s witnesses to attend for cross-examination - listed at para. 93 of his Oct. 14, 2011 pre-trial brief; and that likely only Peter Goodman’s qualifications, and hence his opinion in his last report, will be challenged. [ 60 ] Given the circumstances surrounding this issue, I will make no order as to costs regarding this “Motion”.

J.